Criminal Proceeds (Recovery) Act 2009

1: Title
This Act is the Criminal Proceeds (Recovery) Act 2009.
2: Commencement
This Act comes into force on 1 December 2009.
1: Preliminary provisions
Purpose
3: Purpose
1: The primary purpose of this Act is to establish a regime for the forfeiture of property—
a: that has been derived directly or indirectly from significant criminal activity; or
b: that represents the value of a person’s unlawfully derived income.
2: The criminal proceeds and instruments forfeiture regime established under this Act proposes to—
a: eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and
b: deter significant criminal activity; and
c: reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and
d: deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand. Overview
4: Overview
1: In general terms, this Act—
a: provides for the restraint and forfeiture of property derived as a result of significant criminal activity without the need for a conviction; and
b: sets out certain procedural matters relating to the forfeiture of instruments of crime if a conviction has been or may be entered. Many aspects of the conviction-based forfeiture regime are included in the Sentencing Act 2002
2: More specifically,—
a: Part 1
b: subpart 1
c: subpart 2
d: subpart 3
e: subpart 4
f: subpart 5
g: subpart 6
h: subpart 7
i: subpart 8
j: subpart 9
k: subpart 10
3: This overview is by way of explanation only. If any provision of this Act conflicts with this overview, the other provision prevails. Interpretation
5: Interpretation
1: In this Act, unless the context otherwise requires,— all or part of a respondent’s property assets forfeiture order section 50(1) benefit civil forfeiture order Commissioner convert dealing with
a: means to use or deal with property in any way and by any means; and
b: includes,—
i: if a debt is owed by a person, making a payment to any person to reduce that debt; and
ii: removing property from New Zealand; and
iii: receiving or making a gift of property; and
iv: registering an interest in property department section 5 document
a: means a document in any form (including, without limitation, a document in an electronic form); and
b: includes (without limitation) any of the following:
i: any writing on any material:
ii: information recorded or stored by means of a tape recorder, computer, or other device:
iii: material subsequently derived from information recorded or stored in the manner described in subparagraph (ii):
iv: labels, markings, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:
v: books, maps, plans, graphs, or drawings:
vi: photographs, films, negatives, tapes, or any other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced financial institution section 3 section 5 foreign country section 2(1) foreign forfeiture order section 2(1) foreign order foreign qualifying forfeiture offence section 2(1) foreign restrained property foreign restraining order section 2(1) forfeited property forfeiture order former interest holder instrument forfeiture order section 142N instrument of crime
a: property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence; and
b: in relation to a qualifying instrument forfeiture offence that is an offence against section 8(1), (1A), (2A), or (2B) section 4(1)
c: in relation to any property referred to in paragraphs (a) and (b), the proceeds of any disposition of that property or any other property into which that property is converted, after the commission of the qualifying instrument forfeiture offence, except to the extent provided otherwise by any order of a court under this Act or the Sentencing Act 2002 interest
a: a legal or equitable estate or interest in the property; or
b: a right, power, or privilege in connection with the property interim foreign restraining order section 128 lawyer section 6 Official Assignee organisation Part 2 profit forfeiture order section 55 property
a: means real or personal property of any kind—
i: whether situated in New Zealand or a foreign country; and
ii: whether tangible or intangible; and
iii: whether movable or immovable; and
b: includes an interest in real or personal property proposed restrained property prosecutor
a: means, in relation to an application for a restraining order relating to an instrument of crime or to any matter relating to an instrument forfeiture order, the person who is for the time being in charge of the file or files that relate to the criminal proceeding for the qualifying instrument forfeiture offence to which the restraining order or instrument forfeiture order relates; and
b: includes—
i: any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and
ii: any counsel representing the person who commenced the proceedings
iii: in the case of a private prosecution, the person who commenced the proceedings qualifying instrument forfeiture offence
a: means an offence punishable by a maximum term of imprisonment of 5 years or more; and
b: includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy, or activity is 5 years or more relevant period of criminal activity
a: the date of the application for the relevant restraining order, if the application for the profit forfeiture order relates, wholly or in part, to restrained property; or
b: the date of the application for the profit forfeiture order, if the application for the profit forfeiture order does not relate to restrained property respondent
a: in relation to an application for a restraining order or forfeiture order, the person identified in that application as the respondent (if any); and
b: in relation to a restraining order or forfeiture order that has been made, the person in relation to whom that order is made (if any) restrained property restraining order section 24 25 26 significant criminal activity section 6 significant foreign criminal activity section 2(1) specific property tainted property
a: means any property that has, wholly or in part, been—
i: acquired as a result of significant criminal activity; or
ii: directly or indirectly derived from significant criminal activity; and
b: includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity unlawfully benefited from significant criminal activity section 7
2: A reference in this Act to benefits, proceeds, or property being derived by a person ( person A
a: directly or indirectly by person A; and
b: by another person at the request or direction of person A. Section 5(1) department amended 7 August 2020 section 135 Public Service Act 2020 Section 5(1) financial institution substituted 17 October 2009 section 161(2) Anti-Money Laundering and Countering Financing of Terrorism Act 2009 Section 5(1) instrument of crime replaced 5 October 2021 section 57 Counter-Terrorism Legislation Act 2021 Section 5(1) lawyer replaced 25 February 2012 section 4 Criminal Proceeds (Recovery) Amendment Act 2012 Section 5(1) prosecutor amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 5(1) prosecutor amended 1 July 2013 section 413 Criminal Procedure Act 2011
6: Meaning of significant criminal activity
1: In this Act, unless the context otherwise requires, significant criminal activity
a: that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
b: from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.
2: A person is undertaking an activity of the kind described in subsection (1) whether or not—
a: the person has been charged with or convicted of an offence in connection with the activity; or
b: the person has been acquitted of an offence in connection with the activity; or
c: the person’s conviction for an offence in connection with the activity has been quashed or set aside.
3: Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)﻿(b).
7: Meaning of unlawfully benefited from significant criminal activity
In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity Savings, transitional, and related provisions Heading inserted 1 April 2023 section 7 Criminal Proceeds (Recovery) Amendment Act 2023
7A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 Section 7A inserted 1 April 2023 section 7 Criminal Proceeds (Recovery) Amendment Act 2023 Application
8: This Act to bind the Crown
This Act binds the Crown.
9: Application
This Act applies in respect of—
a: qualifying instrument forfeiture offences or, if applicable, foreign qualifying forfeiture offences committed, or believed to have been committed, before, on, or after the commencement of this section; and
b: significant criminal activity or, if applicable, significant foreign criminal activity engaged in, or believed to have been engaged in, before, on, or after the commencement of this section.
2: Criminal proceeds and instruments forfeiture regime
1: General provisions
10: Nature of proceedings
1: Proceedings relating to any of the following are civil proceedings:
a: a restraining order:
b: an order excluding an interest from restrained property:
c: an assets forfeiture order:
d: a profit forfeiture order:
e: an order for relief from a civil forfeiture order:
f: an appeal from a civil forfeiture order:
g: an interim foreign restraining order:
h: registering a foreign restraining order in New Zealand:
i: registering a foreign forfeiture order in New Zealand:
j: an order for relief from a foreign restraining order or foreign forfeiture order registered in New Zealand.
2: Proceedings relating to instrument forfeiture orders are proceedings under the Sentencing Act 2002 subpart 4 Criminal Assets Recovery Act 1990 s 5 (NSW) Section 10(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
11: Restraint not necessary before forfeiture
Property may, but need not, be restrained property or foreign restrained property before it becomes forfeited property or the subject of a foreign forfeiture order registered in New Zealand.
12: Conversion of restrained property and foreign restrained property
1: Restrained property converted into another form ( converted property
2: Foreign restrained property converted into another form ( converted property
13: No identifiable owner required for certain proceedings relating to specific property
1: In proceedings for a restraining order or an assets forfeiture order relating to specific property, an owner of that specific property need not be identified.
2: Subsection (1) does not apply to proceedings to register a foreign restraining order.
14: Differing grounds for restraining and later forfeiting property
If proceedings for a forfeiture order or to register a foreign forfeiture order in New Zealand involve restrained property or property that was the subject of a foreign restraining order registered in New Zealand, the forfeiture order or the registration of a foreign forfeiture order may be sought on grounds that differ from those on which the restraining order was made or the foreign restraining order was registered.
15: No criminal proceedings required for civil forfeiture order or in registering foreign forfeiture order
The significant criminal activity or significant foreign criminal activity on which a civil forfeiture order or registration of a foreign forfeiture order in New Zealand is based does not need to be, or to have been, the subject of any criminal proceedings in New Zealand or a foreign country.
16: Quashing criminal proceedings does not impact on civil forfeiture
1: Subsection (2) applies if criminal proceedings are commenced or pending or have been withdrawn or determined in respect of any significant criminal activity that is the basis for—
a: an assets forfeiture order or a profit forfeiture order; or
b: an application for an order of that kind.
2: If this subsection applies, the order or application is not affected by the criminal proceedings, even if any conviction entered in those proceedings is or has been quashed or set aside.
17: Multiple forfeiture orders and foreign forfeiture orders
1: Nothing in this Act restricts a court from making 1 or more of the following types of orders in relation to the same instance of significant criminal activity:
a: assets forfeiture orders:
b: instrument forfeiture orders:
c: profit forfeiture orders.
2: Subsection (1) is subject to section 54(1)﻿(b)
3: Nothing in this Act restricts a court from registering 1 or more foreign forfeiture orders in New Zealand in relation to the same instance of significant foreign criminal activity.
2: Restraining orders
Applying for restraining order
18: Applying for restraining order
The following persons may apply for a restraining order:
a: the Commissioner may apply for a restraining order of the kind described in section 24 25
b: a prosecutor may apply for a restraining order of the kind described in section 26 1991 No 120 s 39(1)
19: Application for restraining order to identify proposed restrained property, respondent (if any), and interest holders
An application for a restraining order must identify the following:
a: the proposed restrained property; and
b: the respondent (if any); and
c: any other persons who, to the knowledge of the applicant, have an interest in the proposed restrained property.
20: Court to which application for restraining order made
An application for a restraining order must be made to,—
a: in the case of an application made under section 24 25
b: in the case of an application made under section 26
i: the High Court, if the offence with which the instrument of crime is associated is for a category 4 offence, or if an order has been made under section 68 70
ii: the District Court, if subparagraph (i) does not apply. 1991 No 120 s 39(1) Section 20(b) replaced 1 July 2013 section 413 Criminal Procedure Act 2011 Applications for restraining order made on and without notice
21: Application for restraining order on notice
1: An applicant for a restraining order must,—
a: so far as is practicable, serve a copy of the application on any person who, to the knowledge of the applicant, has an interest in the proposed restrained property (including, if applicable, the respondent); and
b: serve a copy of the application on the Official Assignee.
2: The court hearing an application for a restraining order may, at any time before the application is finally determined, direct the applicant to serve a copy of the application on a specified person or class of persons, in the manner and within the time that the court thinks fit. 1991 No 120 s 40(a), (b)
22: Application for restraining order without notice
1: A court that receives an application for a restraining order may, on the request of the applicant, consider the application without notice being given to any or all of the persons mentioned in section 21(1)﻿(a)
2: If an application is made for a restraining order without notice, the court must, so far as it is practicable and consistent with the interests of justice, ensure that the application is dealt with speedily.
3: Any provisions of this subpart that relate to restraining orders applied for on notice apply, with any necessary modifications, to restraining orders applied for without notice. 1991 No 120 s 41(1), (6) Being heard at hearing for restraining order
23: Who may be heard at hearing for restraining order
1: The following persons are entitled to appear and to adduce evidence at the hearing of an application for a restraining order:
a: the applicant:
b: any person who holds an interest in the proposed restrained property (including, if applicable, the respondent):
c: the Official Assignee.
2: Subsection (1) is subject to section 22 1991 No 120 s 40(c) Making restraining orders
24: Making restraining order relating to specific property
1: A court hearing an application for a restraining order relating to specific property may, if the court is satisfied it has reasonable grounds to believe that any property is tainted property, make an order that the property ( restrained property
a: is not to be disposed of, or dealt with, other than is provided for in the restraining order; and
b: is to be under the Official Assignee’s custody and control.
2: A restraining order may be made under subsection (1) whether or not there is a respondent in relation to whom the restraining order relates.
25: Making restraining order relating to all or part of respondent’s property
1: A court hearing an application for a restraining order relating to all or part of a respondent’s property may, if the court is satisfied it has reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity, make an order that the property it specifies in the order ( restrained property
a: is not to be disposed of, or dealt with, other than is provided for in the restraining order; and
b: is to be under the Official Assignee’s custody and control.
2: A restraining order made under subsection (1) may relate to any of the following:
a: all of a respondent’s property (including property acquired after the making of the order):
b: specified parts of a respondent’s property:
c: all of a respondent’s property (including property acquired after the making of the order) other than specifically excluded property. 1991 No 120 ss 39(2)﻿(b), (c) 42(1)
26: Making restraining order relating to instrument of crime
1: A court hearing an application for a restraining order relating to an instrument of crime may, if either of the circumstances in paragraph (a) or (b) of subsection (2) exist, make an order that the property it specifies in the order ( restrained property
a: is not to be disposed of, or dealt with, other than is provided for in the restraining order; and
b: is to be under the Official Assignee’s custody and control.
2: The circumstances are—
a: that—
i: the respondent has been charged with a qualifying instrument forfeiture offence; and
ii: the court is satisfied it has reasonable grounds to believe that the property referred to in the application is an instrument of crime used to facilitate that qualifying instrument forfeiture offence; or
b: that the court is satisfied it has reasonable grounds to believe—
i: that the respondent will be charged with a qualifying instrument forfeiture offence within 48 hours; and
ii: that the property referred to in the application is an instrument of crime used to facilitate that qualifying instrument forfeiture offence. 1991 No 120 s 42(1) Registration of restraining orders
27: Registration of restraining orders on registers
1: Subsection (2) applies if a restraining order is made against property of a kind that is covered by a New Zealand enactment that enables the registration of—
a: title to that property; or
b: charges over that property.
2: If this subsection applies, any authority responsible for administering an enactment of the kind referred to in subsection (1) must, if requested to do so by the applicant for the restraining order, record on the register the particulars of the restraining order.
3: If the particulars are so recorded on the register, any person who subsequently deals with the property is deemed to have notice of the restraining order at the time of the dealing. 1991 No 120 s 57 Conditions on restraining order
28: Conditions on restraining order
1: A court may make a restraining order subject to any conditions the court thinks fit including, without limitation, conditions that provide for the following to be met out of a respondent’s restrained property:
a: the reasonable living costs of the respondent and any of his or her dependants:
b: the reasonable business expenses of the respondent:
c: the payment of any specified debt incurred by the respondent in good faith:
d: any other expenses allowed by the court.
2: Despite subsection (1)﻿(d), a court may not allow any legal expenses to be met out of a respondent’s restrained property.
3: In determining whether or not to make a restraining order subject to a condition, the court must have regard to the ability of a respondent to meet the reasonable living costs, expenses, or debt concerned out of property that is not restrained property.
4: In this section a dependant
a: a child of the respondent:
b: a member of the household of the respondent. 1991 No 120 s 42(2), (3) Undertakings as to damages or costs in relation to restraining orders
29: Undertakings as to damages or costs in relation to restraining orders
1: A court may require an applicant for a restraining order, or an applicant for an extension of the duration of a restraining order under section 41
2: A court may decline to make a restraining order or extend the duration of a restraining order if the applicant for the order or extension fails to give the court the undertakings with respect to the payment of damages or costs, or both, that the court requires.
3: Any expense incurred by the Crown in satisfaction of an undertaking given on behalf of the Crown under subsection (1) may be incurred without further appropriation than this section. 1991 No 120 s 45 Excluding severable interest from restrained property
30: Excluding severable interest from restrained property
1: A person (other than the respondent) who has a severable interest in proposed restrained property or restrained property may apply to the court that is to consider, or has considered, the application for a restraining order to have that person’s severable interest excluded from—
a: a restraining order that the court may make; or
b: a restraining order the court has made.
2: The court must exclude a severable interest from proposed restrained property or restrained property at, or after, the time a restraining order is made if the applicant proves on the balance of probabilities—
a: that the applicant has an interest in the property to which the restraining order relates; and
b: if the order was or is to be made under section 24 25
c: if the order was or is to be made under section 26
3: The court may exclude a severable interest from proposed restrained property or restrained property at, or after, the time a restraining order is made if it considers that it is in the public interest to do so, having regard to all the circumstances, including, without limitation,—
a: any undue hardship that is reasonably likely to be caused to any person by the severable interest in property being made or having been made restrained property:
b: the gravity of the significant criminal activity or qualifying instrument forfeiture offence with which the property in which the person has a severable interest is associated:
c: the likelihood that the interest will become subject to a forfeiture order. 1991 No 120 s 48
31: Excluding severable interest from restrained property when applicant mortgagee
1: Subsection (2) applies if—
a: an applicant to exclude a severable interest from proposed restrained property or restrained property under section 30(1)
b: as a result of the mortgagee’s application, a court excludes the mortgagee’s interest; and
c: the property that is the subject of the mortgage is sold in order to exclude the mortgagee’s interest from the restrained property.
2: If this subsection applies, any proceeds resulting from the sale of the property that are payable to the mortgagor are, if the restraining order is made, restrained property, despite the proceeds from the sale not being property that the court originally restrained. 1991 No 120 s 48 Disposition or dealings set aside from restrained property
32: Certain disposition or dealing set aside from restrained property
1: A successful applicant for a restraining order may apply to the court that made the restraining order for an order that a disposition or dealing be set aside on the ground that restrained property was disposed of, or otherwise dealt with, in contravention of the restraining order.
2: On an application under subsection (1), the court may—
a: set the disposition or dealing aside—
i: as from the day on which the disposition or dealing took place; or
ii: as from the day of the order; and
b: declare 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. 1991 No 120 s 59 Further orders associated with restraining orders
33: Applying for further orders
1: An application for a further order may be made by—
a: the applicant for the restraining order with which the further order is associated; or
b: a person with an interest in the restrained property or proposed restrained property with which the further order is associated; or
c: the Official Assignee; or
d: with the leave of the court, any other person.
2: The applicant for the further order must serve a copy of the application on—
a: every person, or every other person (if the applicant is a party), who is a party to the proceeding in which—
i: the making of the associated restraining order is to be considered; or
ii: the associated restraining order was made; and
b: the Official Assignee.
3: The following persons are entitled to appear and to adduce evidence at the hearing of an application for a further order:
a: the applicant:
b: a person with an interest in the restrained property or proposed restrained property with which the further order is associated:
c: the Official Assignee:
d: with the leave of the court, any other person. 1991 No 120 s 47(3) Section 33(2) replaced 25 February 2012 section 5 Criminal Proceeds (Recovery) Amendment Act 2012
34: Making further orders
1: On an application under section 33(1) section 35
2: A further order may be made—
a: at the time the associated restraining order is made; or
b: at any later time before the expiry of the associated restraining order. 1991 No 120 s 47(1)
35: Types of further order
Without limiting the generality of section 34(1) section 33(1)
a: an order varying the restrained property to which a restraining order relates:
b: an order varying any condition to which a restraining order is subject:
c: an order for any person (including, without limitation, the respondent) to be examined by the court or the registrar of the court concerning the nature and location of any restrained property:
d: an order relating to the carrying out of any undertaking given under section 29
e: an order relating to the Official Assignee that—
i: regulates the manner in which the Official Assignee may exercise his or her powers or perform his or her duties under a restraining order:
ii: determines any question relating to the restrained property (including any question relating to the liabilities of any person holding an interest in the restrained property), or the exercise of the powers, or the performance of the duties, of the Official Assignee:
iii: requires the examination, before the Official Assignee, of any person holding an interest in the restrained property or any other person, concerning the nature and location of the restrained property:
iv: directs any person holding an interest in the restrained property to furnish the Official Assignee, within the time specified in the order, with a statement on oath setting out any particulars of that interest or that property that the court thinks fit:
v: directs the Official Assignee to sell restrained property (including, without limitation, a business) in order to preserve the value of the restrained property:
vi: directs the Official Assignee to make mortgage payments or payments in respect of any other encumbrance from the restrained property. 1991 No 120 s 47(2)
36: Impact of certain further orders
1: A person to whom an order made under section 35(c) or (e)﻿(iii) or (iv)
2: An examination by the Official Assignee under an order made under section 35(e)﻿(iii) section 108
3: A person required to be examined under an order made under section 35(c) or (e)﻿(iii)
4: The proceeds of a sale resulting from an order made under section 35(e)﻿(v) 1991 No 120 s 47(5), (6) Duration of restraining orders and further orders
37: Duration of restraining orders and further orders
1: A restraining order expires on the earlier of the following:
a: the date that is the end of the period that is 1 year after the date on which the restraining order is made:
b: the date of the making or declining of a forfeiture order associated with the same property.
2: Despite subsection (1),—
a: if a court declines to make a forfeiture order, but the applicant indicates that the applicant will appeal that decision, a restraining order expires on the date specified in section 38
b: if a restraining order is applied for without notice, it expires on the date specified in section 39
c: if a restraining order relates to an instrument of crime and the circumstances in section 40
d: if the duration of a restraining order is extended by a court, the restraining order expires on the date specified by the court under section 41
e: if a restraining order relates to property in which no person has claimed an interest, the restraining order expires on the date that the relevant application for a forfeiture order is determined, which must not be determined earlier than 1 year after the making of the restraining order.
3: On the expiry of a restraining order, any further order associated with that restraining order also expires. 1991 No 120 s 65(1)
38: Duration of restraining order when application for forfeiture order declined
A restraining order that is in force at the time that a court declines to make a forfeiture order that is associated with the same property does not expire, if section 37(2)﻿(a)
a: the date that is the end of a period of 7 working days from the date of that decision, if an appeal has not been lodged in the court by that date; or
b: if an appeal has been lodged in the court by that date, on the date of the withdrawal or determination of that appeal, or, if a further appeal is lodged, on the date of the withdrawal or determination of that further appeal.
39: Duration of restraining order when application without notice
1: A restraining order made as a result of an application made without notice under section 22 restraining order A
2: However, if, before restraining order A expires, an application is made with notice for a restraining order on notice ( restraining order B
3: An applicant for restraining order B must prosecute the application with all due diligence, and if the applicant does not do so, the court may, on the application of any party to the proceedings, order that the proceedings be struck out.
4: If an application is made for restraining order B, the court must, so far as it is practicable and consistent with the interests of justice, ensure that the application is dealt with speedily. 1991 No 120 s 41(2)–(5)
40: Duration of restraining order relating to instrument of crime in certain circumstances
1: A restraining order that relates to an instrument of crime made under section 26(2)﻿(b) 48-hour period
2: Subsection (3) applies if—
a: a restraining order is made in reliance on—
i: a person’s conviction for a qualifying instrument forfeiture offence under section 26(2)﻿(a)
ii: the proposed charging of a person with a qualifying instrument forfeiture offence under section 26(2)﻿(b)
b: either of the following occurs:
i: the charge is withdrawn and the person is not charged with a related qualifying instrument forfeiture offence by the time the charge is withdrawn:
ii: the person is acquitted of the charge or the conviction is quashed and the person has not been charged with a related qualifying instrument forfeiture offence by the time of the acquittal or quashing.
3: If this subsection applies, the restraining order expires on the date when—
a: the charge is withdrawn; or
b: the acquittal or quashing occurs. 1991 No 120 s 65
41: Extending duration of restraining order
1: If a court has made a restraining order, the applicant for that order may, before the restraining order expires, apply to that court to extend its duration.
2: If an application is made under subsection (1), the court may order that the operation of the restraining order be extended for a period not exceeding 1 year.
3: The duration of a restraining order may be extended more than once under this section.
4: If, before a restraining order would otherwise expire under section 37(1) 1991 No 120 s 66(1), (2)
42: Additional matters relating to extending duration of restraining order
1: On making any order under section 41(2)
2: An applicant for an order under section 41(1) 1991 No 120 s 66(3), (4)
3: Civil forfeiture orders
Applications for civil forfeiture orders
43: Who may apply
The Commissioner may apply for a civil forfeiture order. 1991 No 120 s 8(1)
44: Application to High Court
An application for a civil forfeiture order must be made to the High Court. 1991 No 120 s 8(2) Notice and entitlement to be heard in relation to civil forfeiture orders
45: Application for civil forfeiture order on notice
1: The Commissioner must serve a copy of an application for a civil forfeiture order, so far as is practicable to do so, on every person who, to the knowledge of the Commissioner, has an interest in the property to which the application relates (including, if applicable, the respondent).
2: The Commissioner must also serve a copy of the application on the Official Assignee.
3: On an application for a civil forfeiture order, the High Court may, at any time before the application is finally determined, direct the Commissioner to serve notice of the application on a specified person or class of persons, in the manner and within the time the Court thinks fit. 1991 No 120 s 10(1)
46: Who may be heard at hearing for civil forfeiture order
The following persons are entitled to appear and to adduce evidence at the hearing of an application for a civil forfeiture order:
a: the applicant; and
b: any person on whom the application is served (including, if applicable, the respondent); and
c: any other person who claims an interest in the property to which the application relates. 1991 No 120 s 10(2) Matters relating to application for civil forfeiture order
47: Amending application for civil forfeiture order
1: The High Court may amend an application for a civil forfeiture order—
a: on the Court’s own initiative; or
b: at the request of the Commissioner.
2: However, the Court must not amend an application for a civil forfeiture order to include additional property, proceeds, or benefits unless the Court is satisfied that—
a: the additional property, proceeds, or benefits were not reasonably able to be identified when the application for the civil forfeiture order was made; or
b: the evidence necessary to support the application in relation to the additional property, proceeds, or benefits only became available after the application for the civil forfeiture order was made.
3: If the Court amends an application under this section, the Court must direct the Commissioner to serve notice of the amendment on—
a: every person referred to in section 46
b: any person who the Commissioner has reason to believe may have an interest in any additional property included in the application by the amendment. 1991 No 120 s 12
48: Notice of application for civil forfeiture order may be recorded on registers
1: Subsection (2) applies if an application is made for a civil forfeiture order against property of a kind that is covered by a New Zealand enactment that enables the registration of—
a: title to that property; or
b: charges over that property.
2: If this subsection applies, the High Court hearing the application may, at any time before finally determining it, order any authority responsible for administering an enactment of the kind referred to in subsection (1) (an Authority
3: The Court must order an Authority to cancel an entry made on a register under subsection (2) if—
a: the application to which the entry relates is finally determined and the specified period (as described in section 82(2) section 83(2)
b: proceedings for the application to which the entry relates are discontinued for any reason (including, without limitation, because the application is withdrawn); or
c: the application to which the entry relates is amended so as to exclude the property in respect of which the entry is made. 1991 No 120 s 11 Application for assets forfeiture order
49: Application for assets forfeiture order to specify proposed forfeited property, grounds, respondent (if any), and persons with interests (if known)
The Commissioner must specify the following in an application for an assets forfeiture order:
a: the property that the Commissioner alleges is tainted property; and
b: the grounds for the Commissioner's belief that the property is tainted property; and
c: the respondent (if any); and
d: any other persons who, to the knowledge of the Commissioner, have an interest in the property to which the application relates. 1991 No 120 s 9 Making assets forfeiture order
50: Making assets forfeiture order
1: If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.
2: Subsection (1) is subject to section 51
3: The Court must specify in an assets forfeiture order the property to which the order applies and that the property—
a: vests in the Crown absolutely; and
b: is in the custody and control of the Official Assignee.
4: Despite subsection (1), the Court may not make an assets forfeiture order in relation to property that no person has claimed an interest in, unless the Court is satisfied, on the balance of probabilities, of the following additional matters:
a: that a restraining order was earlier made in relation to the same property; and
b: that the restraining order has been in place for a period of at least 1 year; and
c: that the Commissioner has contacted or made all reasonable efforts to contact any person the Commissioner believes may have an interest in the property.
5: If any property that is land is vested in the Crown absolutely as a consequence of an assets forfeiture order made under subsection (3), an interest recorded on the title to the land that is not affected by the assets forfeiture order is not extinguished. 1991 No 120 ss 15(1) 16(1)
51: Exclusion of respondent’s property from assets forfeiture order because of undue hardship
1: The High Court may, on an application made by the respondent before an assets forfeiture order is made, exclude certain property from an assets forfeiture order if it considers that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the respondent if the property is included in the assets forfeiture order.
2: The circumstances the Court may have regard to under subsection (1) include, without limitation,—
a: the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the assets forfeiture order; and
b: the nature and extent of the respondent’s interest in the property; and
c: the circumstances of the significant criminal activity to which the order relates. Application for profit forfeiture order
52: Contents of application for profit forfeiture order
An application for a profit forfeiture order must—
a: name the respondent; and
b: describe the significant criminal activity within the relevant period of criminal activity from which the respondent is alleged to have unlawfully benefited; and
c: state the value of that benefit; and
d: identify the property in which the respondent holds interests and the nature of those interests. 1991 No 120 s 9 Making profit forfeiture order
53: Value of benefit presumed to be value in application
1: If the Commissioner proves, on the balance of probabilities, that the respondent has, in the relevant period of criminal activity, unlawfully benefited from significant criminal activity, the value of that benefit is presumed to be the value stated in—
a: the application under section 52(c)
b: if the case requires, the amended application.
2: The presumption stated in subsection (1) may be rebutted by the respondent on the balance of probabilities.
54: High Court must determine maximum recoverable amount
1: Before the High Court makes a profit forfeiture order, the Court must determine the maximum recoverable amount by—
a: taking the value of the benefit determined in accordance with section 53
b: deducting from that the value of any property forfeited to the Crown as a result of an assets forfeiture order made in relation to the same significant criminal activity to which the profit forfeiture order relates.
2: In determining the value of any property under subsection (1)﻿(b), the Court may, at its own discretion or at the request of either party to the proceedings, seek an independent valuation as to the value of the property.
3: If an assets forfeiture order relating to a determination under this section is discharged on appeal, the Court may, on application by the Commissioner, vary the maximum recoverable amount in the profit forfeiture order to reflect that there is no longer a deduction to be made on account of the assets forfeiture order.
55: Making profit forfeiture order
1: The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—
a: the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
b: the respondent has interests in property.
2: The order must specify—
a: the value of the benefit determined in accordance with section 53
b: the maximum recoverable amount determined in accordance with section 54
c: the property that is to be disposed of in accordance with section 83(1)
3: Subsections (1) and (2) are subject to section 56
4: A profit forfeiture order is enforceable as an order made as a result of civil proceedings instituted by the Crown against the person to recover a debt due to it, and the maximum recoverable amount is recoverable from the respondent by the Official Assignee on behalf of the Crown as a debt due to the Crown.
56: Exclusion of respondent’s property from profit forfeiture order because of undue hardship
1: The High Court may, on an application made by the respondent before a profit forfeiture order is made, exclude certain property from being able to be realised under section 55(2)﻿(c)
2: The circumstances the Court may have regard to under subsection (1) include, without limitation,—
a: the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the profit forfeiture order; and
b: the nature and extent of the respondent’s interest in the property; and
c: the circumstances of the significant criminal activity to which the profit forfeiture order relates.
3: After a profit forfeiture order is made, nothing in this section prohibits a respondent from realising the property that was excluded from being able to be realised under section 55(2)﻿(c)
a: after realising other property under that section there is still a debt owed to the Crown under section 55(4)
b: the respondent agrees to realise the excluded property in order to pay all or part of that debt.
57: Profit forfeiture order if respondent has absconded
1: The High Court may make a profit forfeiture order even if the respondent has absconded.
2: In subsection (1), a respondent has absconded if the respondent—
a: is unable to be found; or
b: by reason of being outside New Zealand, is not amenable to justice.
58: Court may treat effective control over property as interest in property
1: If the High Court is satisfied that a respondent has effective control over property, the Court may, on an application made by the Commissioner, order that the property is to be treated as though the respondent had an interest in the property specified by the Court.
2: An order under subsection (1) may—
a: be made even if the respondent has no interest in the property; and
b: specify an interest that differs from the interest that the respondent has in the property.
3: Without limiting the generality of subsections (1) and (2), the Court may have regard to—
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) or in trusts of the kind referred to in paragraph (b), and any other persons.
4: Property that is subject to an order under subsection (1) may be included in any profit forfeiture order and in any restraining order that is made against the respondent.
5: If the Commissioner applies for an order under subsection (1),—
a: the Commissioner must, so far as it is practicable to do so, serve notice of the application on the respondent and on any person who, to the knowledge of the Commissioner, has an interest in the property; and
b: the respondent 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. 1991 No 120 s 29 Matters associated with making civil forfeiture order
59: Additional matters in respect of making civil forfeiture order
1: In making a civil forfeiture order, the High Court may do either or both of the following:
a: declare the nature, extent, and value of any person’s interest in property specified in the civil forfeiture order:
b: give any directions that may be necessary and convenient for giving effect to the civil forfeiture order.
2: Without limiting the generality of subsection (1)﻿(b), if a Court makes a civil forfeiture order against any property the title to which is passed by registration on a register maintained under any New Zealand enactment, the Court may direct an officer of the Court to do anything reasonably necessary to obtain possession of any document required to effect the transfer of the property and for that purpose may, by warrant, authorise an officer to enter and search any place or thing and seize any document.
3: Part 4 2012 subpart 6 section 101 1991 No 120 s 15(3)–(7) Section 59(3) amended 1 October 2012 section 214(1) Search and Surveillance Act 2012
60: Civil forfeiture order relating to land
1: Nothing in section 50 or 55 section 89
2: If the High Court makes a civil forfeiture order in respect of an estate or interest in land, the order must be transmitted by the Registrar of the Court to the Registrar-General of Land or the Registrar of Deeds, as the case may be, for the purposes of registration under the Land Transfer Act 2017 Deeds Registration Act 1908 1991 No 120 s 16(2), (3) Section 60(1) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 60(2) amended 12 November 2018 section 250 Land Transfer Act 2017 Relief from civil forfeiture order for persons other than respondent
61: Person (other than respondent) may apply for relief before civil forfeiture order made or declined
At any time after an application for a civil forfeiture order has been made and before the civil forfeiture order is made or declined, a person (other than the respondent) who claims an interest in the property sought to be forfeited under a civil forfeiture order may apply for an order for relief.
62: Person (other than respondent) may apply for relief for limited period after civil forfeiture order made
1: Subsection (2) applies at any time after a civil forfeiture order is made and before—
a: the date that is 6 months from the date on which the civil forfeiture order was made; or
b: the date that is the expiry of any further time allowed by the High Court.
2: A person (other than the respondent) who claims an interest in the property to which the civil forfeiture order relates may apply for an order for relief.
3: However, if the applicant who seeks relief appeared at the hearing of the application or amended application for the civil forfeiture order or was served with that application, the Court may not grant relief in the absence of special reasons.
4: Special reasons under subsection (3) include, without limitation, that the Court is satisfied—
a: that the applicant had a good reason for failing to attend the hearing of the application for the civil forfeiture order; or
b: that evidence proposed to be adduced by the applicant in connection with the application under subsection (2) was not reasonably available to the applicant at the time of the hearing of the application for the civil forfeiture order. 1991 No 120 s 17(1), (2), (4)–(6)
63: Application for relief from civil forfeiture order to identify nature and reasons for relief sought
An application for an order for relief from a civil forfeiture order made under section 61 or 62
a: the property and the interest in that property in respect of which the person seeks relief; and
b: the reasons why the applicant should be given relief in relation to that interest.
64: Application for relief from civil forfeiture on notice
An applicant for an order for relief from a civil forfeiture order made under section 61 or 62
a: the Commissioner:
b: the Official Assignee:
c: any other person (including any former interest holder) who claims an interest in the property sought to be affected by the order for relief.
65: Appearing at hearing for relief from civil forfeiture order
The following persons are entitled to appear and to adduce evidence at the hearing of an application for an order for relief from a civil forfeiture order made under section 61 or 62
a: the applicant:
b: the Commissioner:
c: the Official Assignee:
d: any other person (including any former interest holder) who claims an interest in the property sought to be affected by the order for relief.
66: Making order for relief from civil forfeiture order where person has interest and was not involved in significant criminal activity
1: On receipt of an application for an order for relief from a civil forfeiture order under section 61 or 62
a: has an interest, or would but for any civil forfeiture order have an interest, in the property to which the application relates; and
b: has not unlawfully benefited from the significant criminal activity to which the application relates.
2: The High Court may make an order for relief under this section at or after the time the associated civil forfeiture order is made.
67: Making order for relief from civil forfeiture order on grounds of undue hardship
1: On an application for an order for relief from a civil forfeiture order under section 61 or 62
2: The circumstances the Court may have regard to under subsection (1) include, without limitation,—
a: the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the civil forfeiture order; and
b: the nature and extent of any person’s interest in the property; and
c: the degree, if any, to which the person had knowledge of the significant criminal activity to which the property relates; and
d: the circumstances of the significant criminal activity to which the property or order relates.
68: Matters associated with relief from civil forfeiture order when interest severable
If the High Court grants relief from a civil forfeiture order under section 66 or 67
a: in the case of an application made under section 61
b: in the case of an application made under section 62
69: Matters associated with relief from civil forfeiture order when interest not severable
A High Court that grants relief from a civil forfeiture order under section 66 or 67
4: Instrument forfeiture orders
Effect of instrument forfeiture order
70: Effect of instrument forfeiture order
1: An instrument forfeiture order made under section 142N
a: vests in the Crown absolutely; and
b: is in the custody and control of the Official Assignee.
2: If any property that is land is vested in the Crown absolutely as a consequence of an instrument forfeiture order made under subsection (1), an interest recorded on the title to the land that is not affected by the instrument forfeiture order is not extinguished. 1991 No 120 s 16(1), (3)
71: Additional matters in respect of making instrument forfeiture order
1: In making an instrument forfeiture order, the court may do all or any of the following:
a: declare the nature, extent, and value of any person’s interest in property specified in the order:
b: give any directions that may be necessary and convenient for giving effect to the instrument forfeiture order.
2: Without limiting the generality of subsection (1)﻿(b), if a court makes an instrument forfeiture order against any property the title to which is passed by registration on a register maintained under any New Zealand enactment, the court may direct an officer of the court to do anything reasonably necessary to obtain possession of any document required to effect the transfer of the property and for that purpose may, by warrant, authorise an officer to enter and search any place or thing and seize any document.
3: Part 4 2012 subpart 6 section 101 1991 No 120 s 15(3)–(7) Section 71(3) amended 1 October 2012 section 214(2) Search and Surveillance Act 2012
72: Instrument forfeiture order relating to land
1: Nothing in section 70 section 89
2: If a court makes an instrument forfeiture order in respect of an estate or interest in land, the order must be transmitted by the registrar of the court to the Registrar-General of Land or the Registrar of Deeds, as the case may be, for the purposes of registration under the Land Transfer Act 2017 Deeds Registration Act 1908 1991 No 120 s 16(2), (3) Section 72(1) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 72(2) amended 12 November 2018 section 250 Land Transfer Act 2017 Disposal of forfeited property under instrument forfeiture order in certain circumstances
73: Time restraints on disposal of property forfeited under instrument forfeiture order
1: Unless a court that makes an instrument forfeiture order grants leave, property forfeited to the Crown under the instrument forfeiture order must not be disposed of, or otherwise dealt with, by or on behalf of the Crown by the Official Assignee under section 85
2: On the expiry of the relevant appeal period, if the instrument forfeiture order has not been discharged under section 74 section 85
3: The expiry of the relevant appeal period is—
a: on the date when the time for taking appeals against the order expires and no appeals have been filed; or
b: on the date when all appeals in respect of the order have been withdrawn or finally determined. 1991 No 120 s 16(4), (5)
74: Discharge of instrument forfeiture order on appeal or quashing of conviction
1: If a court makes an instrument forfeiture order as part of the sentence or orders imposed on a person convicted of a qualifying instrument forfeiture offence, and the conviction is subsequently quashed, the quashing of the conviction discharges the instrument forfeiture order.
2: If an instrument forfeiture order is discharged as provided in subsection (1) or by a court hearing an appeal against the making of the order, the prosecutor must—
a: as soon as practicable after the discharge of the instrument forfeiture order, serve notice of the discharge on—
i: any person the prosecutor has reason to believe may be a former interest holder; and
ii: the Commissioner; and
b: if required to do so by a court, serve notice of the discharge of the instrument forfeiture order on any specified person or class of persons, in any manner and within any period directed by the court.
3: If an instrument forfeiture order is discharged in either of the ways referred to in subsection (2), the Official Assignee must,—
a: if any interest in the property is still vested in the Crown, arrange for the interest to be transferred to the former interest holder (if known); or
b: in any other case, and subject to section 76 1991 No 120 s 19
75: Official Assignee may apply for directions regarding discharge of instrument forfeiture order under section 74
1: In any case where there is any question as to how to exercise his or her powers under section 74(3)
2: If an application is made under subsection (1),—
a: the Official Assignee must serve notice of the application on every person that the Official Assignee 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 Official Assignee to serve notice of the application on a specified person or class of persons, in any manner and within any time that 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. 1991 No 120 s 20
76: Double benefit not permitted
If, on any application for relief made under section 142J section 142L(2)﻿(b)﻿(ii) 142M(2)﻿(a) section 74(3)﻿(b) 1991 No 120 s 21 Applications for relief relating to instrument forfeiture order
77: Applications for relief from instrument forfeiture order
1: A person (other than a person referred to in subsection (2)) may make an application for relief from an instrument forfeiture order under section 142J
a: if the person claims an interest in property described in a notice issued under section 142B
b: on the ground that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the person making the application or another person (other than a person referred to in subsection (2)) by the operation of an instrument forfeiture order.
2: A person who has been convicted of the qualifying instrument forfeiture offence to which a notice issued under section 142B section 142J Third party appeals from instrument forfeiture order
78: Third party appeals from instrument forfeiture order
1: If a court makes an instrument forfeiture order under section 142N section 142B
2: For the purposes of subsection (1),—
a: subpart 6
b:
c: the court with jurisdiction to consider the appeal must determine—
i: in the case where an application for relief was made and determined under sections 142J to 142M
ii: in the case where no application for relief was made before sentence was imposed, whether—
A: there is any good reason why the appellant failed to make an application for relief before the instrument forfeiture order was made; and
B: if so, whether relief ought to be granted, having regard to the requirements set out in section 142L 142M
d: any notice or other document required to be given to either the prosecutor or the offender (whether under any provisions referred to in paragraph (a) or otherwise) must be given to both those persons.
3: Any appeal by an offender against sentence does not affect the right of any other person who claims to have an interest in the property that is the subject of the appeal to bring an appeal under this section. Section 78(2)﻿(a) replaced 1 July 2013 section 413 Criminal Procedure Act 2011 Section 78(2)﻿(b) repealed 1 July 2013 section 413 Criminal Procedure Act 2011
79: Power of appeal court to vary offender’s sentence
If an appeal by any person against the making of an instrument forfeiture order is successful, the court that allows the appeal may exercise the same powers in respect of any sentence or order imposed on the offender as it would be able to exercise on an appeal against sentence brought by the prosecutor or the offender.
5: Official Assignee
Preserving value of certain property
80: Preserving value of certain property
1: The Official Assignee may do anything reasonably necessary to preserve the value of—
a: restrained property in his or her custody and control under a restraining order; and
b: foreign restrained property in his or her custody and control under a foreign restraining order registered in New Zealand; and
c: property in his or her custody and control under section 111
2: Without limiting the generality of subsection (1), the Official Assignee may do any of the following:
a: take, or become a party to, any civil proceedings affecting the property:
b: ensure that the property is insured:
c: if the property consists, wholly or in part, of securities or investments, realise or otherwise deal with the securities or investments:
d: if the property consists, wholly or in part, of a business, do anything that is necessary or convenient for carrying on that business. 1991 No 120 s 50 No liability for certain payments
81: Official Assignee not liable for certain payments on certain property
1: 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 restrained property or foreign restrained property in his or her custody and control under a restraining order or foreign restraining order registered in New Zealand, or in respect of any other property in his or her custody and control under section 111
a: the rates, land tax, or statutory charge fall due on or after the date of the making of the restraining order or registering of the foreign restraining order or the date on which the property was seized, as the case may be; and
b: only to the extent of any rents and profits received by the Official Assignee in respect of the property on or after that date.
2: The Official Assignee may not make mortgage payments in relation to restrained property or foreign restrained property unless directed by the court that made the restraining order or registered the foreign restraining order to do so out of the restrained property or foreign restrained property. 1991 No 120 s 61 Discharge of assets forfeiture orders by Official Assignee
82: Discharge of assets forfeiture order by Official Assignee
1: If a court makes an assets forfeiture order, the Official Assignee must, as soon as practicable after the expiry of the specified period (as described in subsection (2)), dispose of the property specified in the order and apply the money resulting from the disposal as follows:
a: first, by paying the costs recoverable by the Official Assignee under section 87
b: secondly, by paying to the Legal Services Commissioner
c: thirdly, by paying, in the order of priority set out in section 86E
i: any amount of reparation (as defined in section 79
ii: any offender levy (as defined in section 79
iii: any other type of fine (as defined in section 79
d: fourthly, by paying any remaining money to the Crown.
2: The specified period expires—
a: on the date that is 6 months after the time for bringing any appeal against the assets forfeiture order expires, if no appeal has been filed; or
b: on the date that is 6 months after all appeals in respect of the assets forfeiture order have been withdrawn or finally determined, if an appeal or any appeals have been filed.
3: Despite subsections (1) and (2), if the period for bringing an appeal against the assets forfeiture order has expired and no appeal has been filed or all appeals have been withdrawn or finally determined, the Official Assignee—
a: may realise any asset that makes up the property that is the subject of the assets forfeiture order; but
b: must, if he or she does so, hold the proceeds of realising those assets until the expiry of the specified period. 1991 No 120 s 54 Section 82(1)﻿(b) amended 24 October 2019 section 34 Statutes Amendment Act 2019 Section 82(1)﻿(c) replaced 1 August 2012 section 4 Criminal Proceeds (Recovery) Amendment Act 2011 Discharge of profit forfeiture order by Official Assignee
83: Discharge of profit forfeiture order by Official Assignee
1: If the High Court makes a profit forfeiture order, the Official Assignee must, as soon as practicable after the expiry of the specified period (as described in subsection (2)), dispose of the property specified in the order and apply the money resulting from the disposal as follows:
a: first, by paying the costs recoverable by the Official Assignee under section 87
b: secondly, by paying to the Legal Services Commissioner
c: thirdly, by paying, in the order of priority set out in section 86E
i: any amount of reparation (as defined in section 79
ii: any offender levy (as defined in section 79
iii: any other type of fine (as defined in section 79
d: fourthly, by paying to the Crown the following amount, less the sum of the payments made under paragraphs (a) to (c),—
i: if the sum resulting from realising the property is equal to, or more than, the maximum recoverable amount specified by the Court under section 55
ii: if the sum resulting from realising the property is less than the maximum recoverable amount, the sum resulting from realising the property:
e: fifthly, by paying any remaining money to the former interest holder.
2: The specified period expires—
a: on the date that is 6 months after the time for bringing any appeal against the profit forfeiture order expires, if no appeal has been filed; or
b: on the date that is 6 months after all appeals in respect of the profit forfeiture order have been withdrawn or finally determined, if an appeal or any appeals have been filed.
3: Despite subsections (1) and (2), if the period for bringing an appeal against the profit forfeiture order has expired and no appeal has been filed or all appeals have been withdrawn or finally determined, the Official Assignee—
a: may realise any asset that makes up the property that is the subject of the profit forfeiture order; but
b: must, if he or she does so, hold the proceeds of realising those assets until the expiry of the specified period.
4: Subsection (1)﻿(d)﻿(ii) does not prevent the Official Assignee from recovering, by any lawful means, the balance of the maximum recoverable amount that remains due to the Crown, after the Crown is paid a sum less than the maximum recoverable amount under the provision.
5: This section is subject to section 84 section 173(d) 1991 No 120 s 51 Section 83(1)﻿(b) amended 24 October 2019 section 35 Statutes Amendment Act 2019 Section 83(1)﻿(c) replaced 1 August 2012 section 5 Criminal Proceeds (Recovery) Amendment Act 2011
84: Bankruptcy in relation to profit forfeiture order
1: If, after a profit forfeiture order is made, the Official Assignee is given notice in writing of the filing of a creditor’s application in respect of the person under section 13
a: selling or disposing of the property specified in the order:
b: paying the amounts specified in section 83
2: If a person whose property is the subject of a profit forfeiture order becomes bankrupt, the property that is the subject of the profit forfeiture order, if it has not yet been disposed of, ceases to be in the custody and control of the Official Assignee and is deemed to be vested in the Assignee of the bankrupt’s property under section 101
3: A profit forfeiture order made against a person is provable in the bankruptcy of that person.
4: To avoid doubt, subsection (3) applies despite anything in section 232(2) 1991 No 120 s 60 Discharge of civil forfeiture order applying to interests in KiwiSaver scheme Heading inserted 1 April 2023 section 32 Criminal Proceeds (Recovery) Amendment Act 2023
84A: Discharge of civil forfeiture order applying to interests in KiwiSaver scheme
1: To the extent that the property specified in a civil forfeiture order is an interest held by a person as a member of a KiwiSaver scheme, the interest must be disposed of in accordance with this section.
2: At the time that the property is required to be disposed of under section 82 83
3: As soon as practicable after the Official Assignee notifies the manager, the manager must arrange for an amount up to the member’s accumulation to be released into the custody and control of the Official Assignee.
4: In this section,— KiwiSaver scheme section 4(1) manager section 6(1) member’s accumulation section 4(1) Section 84A inserted 1 April 2023 section 32 Criminal Proceeds (Recovery) Amendment Act 2023 Discharge of instrument forfeiture order by Official Assignee
85: Discharge of instrument forfeiture order by Official Assignee
If a court makes an instrument forfeiture order, the Official Assignee must, as soon as practicable after the expiry of the relevant appeal period (defined in section 73(3)
a: first, by paying the costs recoverable by the Official Assignee under section 87
b: secondly, by paying to the Legal Services Commissioner
c: thirdly, by paying, in the order of priority set out in section 86E
i: any amount of reparation (as defined in section 79
ii: any offender levy (as defined in section 79
iii: any other type of fine (as defined in section 79
d: fourthly, by paying any remaining money to the Crown. Section 85(b) amended 24 October 2019 section 36 Statutes Amendment Act 2019 Section 85(c) replaced 1 August 2012 section 6 Criminal Proceeds (Recovery) Amendment Act 2011 Discharge of foreign forfeiture order registered in New Zealand by Official Assignee
86: Discharge by Official Assignee of foreign forfeiture order registered in New Zealand
1: If a foreign forfeiture order is registered in New Zealand, the Official Assignee must, as soon as practicable after the expiry of the specified period (described in subsection (2)), dispose of the property specified in the order by—
a: paying the costs recoverable under section 87
b: paying the remaining money to the Attorney-General for disposal at his or her discretion.
2: The specified period expires—
a: on the date that is 6 months after the time for bringing any appeal against the registration of the foreign forfeiture order expires, if no appeal has been filed; or
b: on the date that is 6 months after all appeals in respect of the registration of the order have been withdrawn or finally determined, if an appeal or any appeals have been filed.
3: Despite subsections (1) and (2), if the period for bringing an appeal against the registration of a foreign forfeiture order has expired and no appeal has been filed or all appeals have been withdrawn or finally determined, the Official Assignee—
a: may realise any asset that makes up the property that is the subject of the registered foreign forfeiture order; but
b: must, if he or she does so, hold the proceeds of realising those assets until the expiry of the specified period. Costs recoverable by Official Assignee
87: Costs recoverable by Official Assignee
1: The Official Assignee is entitled to recover, in respect of the exercise or performance by the Official Assignee or any delegate of the Official Assignee of functions or powers under this Act in respect of property, costs as may be prescribed or provided for in regulations made under this Act, if the Official Assignee—
a: takes custody and control of property under a restraining order, foreign restraining order registered in New Zealand,
b: deals with or disposes of property under a forfeiture order, or foreign forfeiture order registered in New Zealand.
2: For the purposes of subsection (1), the costs that may be prescribed or provided for in regulations made under this Act include—
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 or powers under this Act in respect of the property:
b: proper remuneration for work undertaken 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 or powers under this Act in respect of the property. 1991 No 120 s 63 Section 87(1)﻿(a) amended 25 February 2012 section 6 Criminal Proceeds (Recovery) Amendment Act 2012 Delegation by Official Assignee
88: Delegation by Official Assignee
1: The Official Assignee may from time to time—
a: delegate all or any of the functions and powers conferred or imposed on the Official Assignee by or under this Act to the following persons:
i: the Deputy Official Assignee for New Zealand; or
ii: an Official Assignee or Deputy Official Assignee appointed under the Public Service Act 2020
b: delegate all or any of the functions and powers conferred or imposed on the Official Assignee under subpart 7
2: A delegation under subsection (1)—
a: must be in writing; and
b: may not include the power to delegate under subsection (1) unless it is a delegation to the Deputy Official Assignee.
3: The power of the Official Assignee to delegate under subsection (1) does not limit any power of delegation conferred on the Official Assignee by any other Act. 1991 No 120 s 86(1)–(4) Section 88(1)﻿(a)﻿(ii) amended 7 August 2020 section 135 Public Service Act 2020
89: Acting under delegation from Official Assignee
1: A person to whom any functions or powers are delegated under section 88
2: Despite subsection (1), any delegated functions or powers must be exercised subject to any general or special directions given or conditions imposed by the Official Assignee.
3: A person purporting to act pursuant to any delegation under section 88
4: Any delegation under section 88
a: subject to any restrictions and conditions that the Official Assignee thinks fit:
b: either generally or in relation to any particular case or class of cases.
5: No delegation under section 88
a: affect or prevent the exercise or performance of any functions or powers by the Official Assignee; or
b: affect the responsibility of the Official Assignee for the actions of any person acting under the delegation.
6: Any person purporting to exercise or perform any functions or powers of the Official Assignee by virtue of a delegation under section 88 1991 No 120 s 86(5)–(9)
90: Revocation of delegation from Official Assignee
1: Every delegation under section 88
2: A delegation under section 88 1991 No 120 s 87
6: Role of police
91: Interpretation
In this subpart, unless the context otherwise requires, Commissioner powers, functions, or duties Section 91 amended 25 February 2012 section 7 Criminal Proceeds (Recovery) Amendment Act 2012 Functions of Commissioner of Police
92: Independence
1: In any matter relating to any decision to investigate any person or property or to take any proceedings under this Act, the Commissioner is not responsible to the Attorney-General or any other Minister of the Crown and must act independently.
2: Nothing in this section limits or affects any power that may be exercised by the Attorney-General in relation to any proceedings. Challenge to exercise of Commissioner's decisions, powers, and duties
93: Effect of proceedings relating to Commissioner's powers and duties
1: This section applies if any person makes any challenge in any proceeding in any court in respect of—
a: the exercise by the Commissioner of any power conferred by this Act:
b: the discharge of any duty imposed on the Commissioner by this Act.
2: If this section applies, until a final decision (as described in subsection (4)) in relation to those proceedings is given, the power or duty may be, or may continue to be, exercised or discharged as if no such proceedings of that kind had been commenced, and no person is excused from fulfilling any obligation under this Act by reason of those proceedings.
3: This section applies despite any other provision of any enactment or rule of law or equity.
4: A final decision section 15 1990 No 51 s 21 Section 93(4) amended 1 March 2017 section 24 Judicial Review Procedure Act 2016
94: Effect of final decision that exercise of powers unlawful
1: This section applies in any case where it is declared, in a final decision given in any proceedings in respect of the exercise of any powers conferred on the Commissioner by this Act, that the exercise of any powers conferred on the Commissioner by this Act is unlawful.
2: If this section applies, to the extent to which the exercise of those powers is declared unlawful the Commissioner must ensure that immediately after the decision of the court is given—
a: any information obtained as a consequence of the exercise of powers declared to be unlawful, and any record of that information, is destroyed:
b: any documents, or extracts from documents, or other things removed as a consequence of the exercise of powers declared to be unlawful are returned to the person previously having possession of them, or previously having them under his or her control, and any copies of those documents or extracts are destroyed:
c: any information derived from or based on such information, documents, extracts, or things is destroyed.
3: Despite subsection (2), the court may, in the court’s discretion, order that any information, record, or copy of any document or extract from a document may, instead of being destroyed,—
a: be returned to the person from whom it was obtained; or
b: be retained by the police subject to any terms and conditions that the court imposes.
4: No information obtained, and no documents or extracts from documents or other things removed, as a consequence of the exercise of any powers declared to be unlawful, and no record of any such information or documents,—
a: is admissible as evidence in any proceedings unless the court hearing the proceedings in which the evidence is sought to be adduced is satisfied that there was no unfairness in obtaining the evidence:
b: may be used in connection with the exercise of any power conferred by this Act unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence. 1990 No 51 s 22 Approval of settlements
95: High Court must approve settlement between Commissioner and other party
1: The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.
2: A settlement does not bind the parties unless the High Court approves it.
3: The High Court must approve the settlement if it is satisfied that it is consistent with—
a: the purposes of this Act; and
b: the overall interests of justice. Delegation of powers, functions, or duties Heading amended 25 February 2012 section 8 Criminal Proceeds (Recovery) Amendment Act 2012
96: Delegation of powers, functions, or duties of Commissioner of Police
The provisions of the Policing Act 2008 Section 96 replaced 25 February 2012 section 9 Criminal Proceeds (Recovery) Amendment Act 2012 Outside investigators appointed by Commissioner
97: Exercise of powers by outside investigators
1: Any person who is appointed by the Commissioner to investigate the affairs, or any aspect of the affairs, of any other person may be authorised by the Commissioner—
a: to exercise, in the company of a member of the police, all or any of the powers conferred by sections 105 107
b: to assist any member of the police to execute any search warrant issued under this Act.
2: Any person appointed under subsection (1) is deemed to be a member of the police for the purposes of the investigation in respect of which he or she is appointed. 1990 No 51 s 34
98: Disclosure to Commissioner of Police of information held by Inland Revenue Department
1: For the purposes of this section,— authorised person
a: the Commissioner of Inland Revenue or any officer of the Inland Revenue Department who is authorised by the Commissioner of Inland Revenue to disclose and receive information under this section; or
b: the Commissioner of Police and any employee, officer, or agent of the police who is authorised by the Commissioner of Police to disclose and receive information under this section.
2: No obligation as to secrecy or other restrictions imposed by any enactment or otherwise on the disclosure of information prevents—
a: an authorised person referred to in paragraph (b) of the definition of authorised person
b: an authorised person referred to in paragraph (a) of the definition of authorised person
3: Information obtained under subsection (2)﻿(b) must not be disclosed, except—
a: to an authorised person; or
b: to the person in respect of whom the information was obtained; or
c: in connection with proceedings taken or to be taken under this Act.
4: Any disclosure of information under this section must be in accordance with arrangements made from time to time in writing between the Commissioner of Inland Revenue and the Commissioner of Police, which may include arrangements—
a: further defining and limiting the use of information supplied under this section:
b: about the storage of that information and security precautions to be undertaken:
c: subject to section 99
5: This section and section 99
99: Destruction of information supplied under section 98
1: The Commissioner of Police must ensure that the information obtained under section 98
2: Nothing in subsection (1) applies to—
a: any reference to information obtained under section 98
b: any record of information adduced in proceedings in any court; or
c: any case where the defendant pleads guilty to any record of any information that, in the opinion of the Judge, would have been adduced had the matter come to trial.
7: Investigative powers
100: Interpretation
In this subpart, unless the context otherwise requires,— Judge occupier Police powers
101: Police may obtain warrant to search for and seize evidence and property
1: Any Judge may issue a warrant to search any place or thing, if the Judge is satisfied, on an application made in the manner provided in subpart 3
2: The property or evidence in respect of which a search warrant may be issued under subsection (1) is—
a: evidence as to the nature and extent of any person’s interest in or control over property that is an instrument of crime:
b: an instrument of crime.
3: An application for a warrant under subsection (1) may be made—
a: by a member of the police:
b: before, on, or after the making of a restraining order.
4: A warrant may be issued under subsection (1) whether or not a charging document has been filed
5: However, if a charging document filed a charging document filed 1991 No 120 s 30 Section 101(1) amended 1 October 2012 section 215(1) Search and Surveillance Act 2012 Section 101(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 101(5) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Commissioner's powers
102: Commissioner may obtain warrant to search for and seize evidence and property
1: Any Judge may issue a warrant to search any place or thing if, on an application made in the manner provided in subpart 3
2: The property or evidence in respect of which a warrant may be issued under subsection (1) is—
a: tainted property; or
b: evidence establishing the nature and extent of any person’s interest in or control over property that is tainted property; or
c: evidence establishing the nature and extent of the interest in or control over property of any person who has unlawfully benefited from significant criminal activity; or
d: property that is the subject of a restraining order (other than a restraining order obtained on the application of a prosecutor).
3: An application for a warrant under subsection (1) may be made—
a: by the Commissioner:
b: before, on, or after the making of a restraining order:
c: whether or not the Commissioner has exercised any power under section 105 107
4: A warrant may not be issued under subsection (1) in respect of any evidence or property solely because it is believed to relate to, or be, an instrument of crime. Section 102(1) amended 1 October 2012 section 215(2) Search and Surveillance Act 2012
103: Commissioner to transfer property to Official Assignee
If any property is seized pursuant to a warrant issued under section 101 102(1) 1991 No 120 s 35 Production orders
104: Application for production order
1: The Commissioner may apply to a Judge for a production order under section 105
2: Every application under this section must be made in the manner provided in relation to a search warrant in sections 99 100
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 other thing or type of property or other thing to which the document or documents are believed to relate.
3: Every person commits an offence who makes an application for a production order that contains any assertion or other statement known by the person to be false.
4: Every person who commits an offence against subsection (3) is liable on conviction to imprisonment for a term not exceeding 1 year. 1991 No 120 s 68 Section 104(2) amended 1 October 2012 section 215(3) Search and Surveillance Act 2012 Section 104(3) inserted 1 October 2012 section 215(4) Search and Surveillance Act 2012 Section 104(4) inserted 1 October 2012 section 215(4) Search and Surveillance Act 2012
105: Court may make production order
1: If an application is made under section 104
a: produce to the Commissioner section 104(1)
b: make available to the Commissioner
2: Every production order must contain the following particulars:
a: the grounds on which the order is issued:
b: a description of the document or documents production of which is required:
c: a description of the property or other thing or type of property or other thing to which the document or documents are believed to relate.
3: An order made under subsection (1) is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made).
4: A Judge must not make an order under subsection (1) unless the application contains, or the applicant otherwise supplies to the Judge, any information that the Judge requires concerning the grounds on which the order is sought.
5: If any document is produced under this section, the Commissioner may do any one or more of the following things:
a: retain the original document produced for as long as is reasonably necessary for the purposes of this Act, provided that a copy of the document is taken and returned as soon as practicable after the document is produced:
b: take copies of the document, or of extracts from the document:
c: if necessary, require the person producing the document to reproduce, or to assist any person nominated by the Commissioner to reproduce, in usable form, any information recorded or stored in the document.
6: If any person is required to produce any document under this section and fails to do so, the Commissioner may require that person to state to the best of his of her knowledge or belief where the document is. 1991 No 120 s 69 Section 105(1)﻿(a) amended 25 February 2012 section 10 Criminal Proceeds (Recovery) Amendment Act 2012 Section 105(1)﻿(b) amended 25 February 2012 section 10 Criminal Proceeds (Recovery) Amendment Act 2012 Examination orders Heading inserted 25 February 2012 section 11 Criminal Proceeds (Recovery) Amendment Act 2012
106: Application for examination order
1: The Commissioner may apply to a Judge for an examination order under section 107
a: to answer questions with respect to any matter that the Commissioner has reason to believe may be relevant to the investigation or to any proceedings under this Act:
b: to supply any information with respect to any matter that the Commissioner has reason to believe may be relevant to the investigation or to any proceedings under this Act:
c: to produce for inspection any documents that the Commissioner has reason to believe are in the person's possession or control or may be relevant to the investigation or to any proceedings under this Act.
2: Every application under this section must be made in the manner provided in relation to a search warrant in sections 99 100
a: the grounds on which the application is made:
b: a description of the information that is sought:
c: a description of the document or documents production of which is sought.
3: Every person commits an offence who makes an application for an examination order that contains any assertion or other statement known by the person to be false.
4: Every person who commits an offence against subsection (3) is liable on conviction to imprisonment for a term not exceeding 1 year. Section 106(2) amended 1 October 2012 section 215(5) Search and Surveillance Act 2012 Section 106(3) inserted 1 October 2012 section 215(6) Search and Surveillance Act 2012 Section 106(4) inserted 1 October 2012 section 215(6) Search and Surveillance Act 2012 Examination order Heading repealed 25 February 2012 section 12 Criminal Proceeds (Recovery) Amendment Act 2012
107: Power to require attendance before Commissioner, production of documents, etc
1: If an application is made under section 106
2: An order under subsection (1) must contain the following particulars:
a: the provision under which the order is made:
b: a description of the information that is sought:
c: a description of the document or documents production of which is sought:
d: a description of the property or other thing or type of property or other thing to which the document or documents are believed to relate.
3: The things referred to in subsection (1) are—
a: to attend before the Commissioner:
b: to answer questions with respect to any matter that the Commissioner has reason to believe may be relevant to the investigation or to any proceedings under this Act:
c: to supply any information specified in the order
d: to produce for inspection any documents that are specified in the order
4: If any document is produced under this section, the Commissioner may do any one or more of the following things:
a: retain the original document produced for as long as is reasonably necessary for the purposes of this Act, provided that a copy of the document is taken and returned as soon as practicable after the document is produced:
b: take copies of the document, or of extracts from the document:
c: require the person producing the document to provide an explanation of the history, subject matter, and contents of the document and to answer any other questions that arise from that explanation and that the Commissioner has reason to believe may be relevant to the investigation:
d: if necessary, require the person producing the document to reproduce, or to assist any person nominated by the Commissioner to reproduce, in usable form, any information recorded or stored in the document.
5: If any person is required to produce any document under this section and fails to do so, the Commissioner may require that person to state, to the best of his or her knowledge and belief, where the document is.
6: If any person is required to supply any information under this section, and does so by producing a document containing that information, the powers conferred by subsection (4) apply in all respects to that document.
7: Any person who is required to attend before the Commissioner under this section must, before being required to comply with any requirements imposed under this section, be given a reasonable opportunity to arrange for a lawyer to accompany him or her. 1990 No 51 s 9 Section 107(3)﻿(c) amended 25 February 2012 section 13(1) Criminal Proceeds (Recovery) Amendment Act 2012 Section 107(3)﻿(d) amended 25 February 2012 section 13(2) Criminal Proceeds (Recovery) Amendment Act 2012 Non-compliance with production order or examination order
108: Power to obtain search warrant for non-compliance with production order or examination order
1: The Commissioner may, on an application made in the manner provided in subpart 3
2: Any Judge may issue a warrant
a: that there are reasonable grounds for believing that—
i: a person has failed to produce all of the documents specified in a production order made under section 105 section 107
ii: any information supplied under section 107
iii: a person has failed to comply with any obligation imposed under section 107
iv: the service of an order under section 105 107
b: that there are reasonable grounds for believing that there is, at the place or thing specified in the application, or will come into or onto the place or thing, while the warrant is in force—
i: any document or information required to be produced or supplied under section 105 107
ii: if paragraph (a)﻿(iv) applies, any document or information that could have been sought under section 105 107 1990 No 51 s 6 Section 108(1) amended 1 October 2012 section 215(7) Search and Surveillance Act 2012 Section 108(2) amended 1 October 2012 section 215(8) Search and Surveillance Act 2012
109: Immunity from liability for disclosure of information under this Act
1: This section applies if—
a: any person does any act that, apart from sections 98 105 107
b: that information is so disclosed, in good faith, for the purpose of or in connection with the enforcement or intended enforcement of any enactment or provision referred to in this Act; and
c: that person is otherwise under any obligation (whether arising by virtue of any enactment or any rule of law or otherwise) to maintain secrecy in relation to, or not to disclose, that information.
2: If this section applies, then despite the fact that the disclosure would otherwise constitute a breach of an obligation of secrecy or non-disclosure, the disclosure by that person, of that information in accordance with this Act is not a breach of that obligation of secrecy or non-disclosure or (where applicable) of any enactment by which that obligation is imposed. Official Assignee’s powers
110: Official Assignee may apply for warrant to search for and seize property
1: Any Judge may issue a warrant to search any place or thing if, on an application made in the manner provided in subpart 3
a: that there are reasonable grounds for believing that property of the kind referred to in subsection (2) is in or on the place or thing, or will come into or onto the place or thing, while the warrant is in force; and
b: in the case of property referred to in subsection (2)﻿(a), that the Official Assignee has complied with subsection (4).
2: The property in respect of which a search warrant may be issued under subsection (1) is—
a: any proposed restrained property that is the subject of an application for a restraining order:
b: any property that is the subject of a restraining order:
c: any property that is the subject of a forfeiture order.
3: An application for a warrant under subsection (1) may be made—
a: by the Official Assignee:
b: before, on, or after the making of a restraining order or a forfeiture order.
4: The Official Assignee may not make an application under subsection (1) in respect of any property referred to in subsection (2)﻿(a) unless—
a: the Official Assignee wishes to assess the nature and condition of any property that is the subject of an application for a restraining order to ensure that it is not at risk of damage, alteration, removal, or being treated in any other way to diminish its value; or
b: the Official Assignee has reasonable grounds to believe that any property of that kind is at risk of damage, alteration, removal, or being treated in any other way to diminish its value. 1991 No 120 s 30 Section 110(1) amended 1 October 2012 section 215(9) Search and Surveillance Act 2012
111: Official Assignee to hold property
If property is seized pursuant to a warrant issued under section 110 section 103 1991 No 120 s 35
112: Return of seized property that is not subject of forfeiture order
1: Any property that is transferred to the Official Assignee under section 103 section 110
2: However, this section does not require the return of property if that property is the subject of a forfeiture order—
a: when the property is transferred or seized as referred to in subsection (1); or
b: when a requirement to return the property to the appropriate person as soon as practicable would otherwise apply under this section.
3: If the property was the subject of a restraining order when the relevant search warrant was issued, the property must be returned to the appropriate person as soon as practicable after the expiry of the restraining order.
4: If the property was not the subject of a restraining order when the relevant search warrant was issued, the property must be returned to the appropriate person as soon as practicable after the expiry of 28 days after the date on which the property comes into the custody or control of the Official Assignee (the 28-day period
5: However,—
a: if a restraining order is obtained in relation to that property before the expiry of the 28-day period, the property must be returned to the appropriate person as soon as practicable after the order expires; or
b: if a restraining order is not obtained in relation to that property before the expiry of the 28-day period but an application for a forfeiture order is made as soon as practicable and before that expiry, the property must be returned as soon as practicable after the application is determined; or
c: if an application for a restraining order is made as soon as practicable and before the expiry of the 28-day period, but not determined before that expiry, the property must be returned as soon as practicable after—
i: the application is determined if the application is refused; or
ii: the expiry of the restraining order if the application is granted.
6: This section is subject to section 113
7: In this section, the appropriate person Section 112 replaced 1 April 2023 section 34 Criminal Proceeds (Recovery) Amendment Act 2023
113: Disputed ownership, etc, of seized property to which section 112 applies
1: The Official Assignee may apply to the District Court for an order under this section if there is a dispute, or the Official Assignee is uncertain (for any reason), about whom property must be returned to under section 112
2: On an application under this section, the District Court may—
a: order that the property be destroyed; or
b: order that the property be delivered to the person appearing to the court to be the owner of the property or entitled to possession of it; or
c: if the owner or person entitled to possession cannot be found, make any order with respect to the property’s possession or sale that the court thinks fit.
3: If, after the District Court makes an order under this section in relation to any property, an action is commenced against the Crown for the recovery of the property or its value, the order and the delivery of the property in accordance with the order may be given and must be received in evidence in bar of the action.
4: However, the order or delivery does not affect the right of any persons entitled by law to possession of the property to recover the property from any person or body (other than the Crown).
5: In this section, the Crown
a: the Commissioner or any Police employee (within the meaning of section 4
b: the Official Assignee or any delegate of the Official Assignee or any other member of staff of the Official Assignee. 2012 No 24 s 154 Section 113 replaced 1 April 2023 section 34 Criminal Proceeds (Recovery) Amendment Act 2023 General rules about search warrants
114: Application of Part 4 of Search and Surveillance Act 2012
1: The provisions of Part 4 subpart 6
2: The provisions of subpart 6 sections 101(2)﻿(a) 102(2)﻿(b) and (c) Section 114 replaced 1 October 2012 section 216 Search and Surveillance Act 2012
115: Application for search warrant
Section 115 repealed 1 October 2012 section 217 Search and Surveillance Act 2012
116: Form and content of search warrant
Section 116 repealed 1 October 2012 section 217 Search and Surveillance Act 2012
117: When search warrant is executed
Section 117 repealed 1 October 2012 section 217 Search and Surveillance Act 2012
118: Powers conferred by search warrant
Section 118 repealed 1 October 2012 section 217 Search and Surveillance Act 2012
119: Powers of persons called to assist
Section 119 repealed 1 October 2012 section 217 Search and Surveillance Act 2012
120: Person executing warrant to produce evidence of authority
Section 120 repealed 1 October 2012 section 217 Search and Surveillance Act 2012
121: Inventory of items seized
Section 121 repealed 1 October 2012 section 217 Search and Surveillance Act 2012
122: Compliance with certain provisions unnecessary in some circumstances
Section 122 repealed 1 October 2012 section 217 Search and Surveillance Act 2012 Orders
123: Form and content of orders
1: Every order issued under this subpart must be in the prescribed form.
2: Any information or document is sufficiently specified in an order of that kind if the information or document is described—
a: in a general rather than a specific way; or
b: by reference only to its class, nature, content, or effect.
3: The time at which any thing is required to be done is sufficiently specified in an order of that kind if the time is described as—
a: immediately; or
b: any other stated time.
4: Every order under this subpart that requires attendance before the Commissioner must inform the person to whom it is addressed that the person may, if that person so wishes, be accompanied by a lawyer.
5: Every order under this subpart must inform the person to whom it is addressed of the relevant offences set out in subpart 9 Warrants and powers associated with foreign restraining orders and foreign forfeiture orders
124: Warrants associated with foreign restraining orders and foreign forfeiture orders
1: A member of the police, if authorised under section 59(2)﻿(a) section 101
2: Sections 101(1) to (3) 103 112 113
125: Powers of Commissioner in relation to warrants associated with foreign restraining orders and foreign forfeiture orders
1: The Commissioner, if authorised under section 59(2)﻿(b) section 102
2: Sections 102 103 112 113
126: Powers of Official Assignee in relation to warrants associated with foreign restraining orders and foreign forfeiture orders
1: The Official Assignee, if authorised under section 59(2)﻿(c) section 110
2: Sections 110 to 113
127: Provisions associated with foreign restraining orders and foreign forfeiture orders
Part 4 2012 subpart 6 sections 124 to 126 Section 127 replaced 1 October 2012 section 218 Search and Surveillance Act 2012
8: Foreign restraining orders and foreign forfeiture orders
Interim foreign restraining orders
128: Interim foreign restraining order
1: The Commissioner may apply for an interim foreign restraining order if authorised by the Attorney-General under section 60
2: An application under subsection (1) is an application made without notice.
3: Subpart 2 sections 21 22(1) 37 to 42
a: with any necessary modifications:
b: without limiting paragraph (a), with the following specific modifications:
i: a reference to significant criminal activity must be read as a reference to significant foreign criminal activity:
ii: the reference in section 28(2)
4: An interim foreign restraining order is to be treated in all respects (other than under sections 37 to 42
5: This section applies, with any necessary modifications, to an application for a restraining order made under section 112 1991 No 120 s 66A(1), (2), (6)
129: Expiry of interim foreign restraining orders
1: An interim foreign restraining order expires when the earlier of the following occurs:
a: the date is reached that is the end of 28 days (commencing on the day on which the order is made):
b: a foreign restraining order relating to some or all of the property to which the interim foreign restraining order relates is registered in New Zealand.
2: Despite subsection (1), if the duration of an interim foreign restraining order is extended by a court, the interim foreign restraining order expires on the date specified by the court under section 130 1991 No 120 s 66A(3), (4)
130: Extending duration of interim foreign restraining order
1: If a court has made an interim foreign restraining order, the applicant for that order may, before the interim foreign restraining order expires, apply to that court to extend its duration.
2: If an application is made under subsection (1), the court may order that the interim foreign restraining order be extended for a period not exceeding 3 months.
3: The duration of an interim foreign restraining order may be extended more than once under this section.
4: If, before an interim foreign restraining order would otherwise expire under section 129(1) 1991 No 120 s 66(1), (2)
131: Additional matters relating to extending duration of interim foreign restraining order
1: On making an order under section 130
2: An applicant for an order under section 130 1991 No 120 s 66(3), (4) Registering foreign restraining orders
132: Who may apply to register foreign restraining order
The Commissioner may apply to register a foreign restraining order in New Zealand if authorised by the Attorney-General under section 54
133: Application to register foreign restraining order made to High Court
If authorised to register a foreign restraining order in New Zealand under section 54
134: Provisions of subpart 2 of Part 2 applying to registering foreign restraining orders
1: The following sections of subpart 2 section 54 section 112(2)
a: section 19
b: section 21
ba: section 22
c: section 27
d: section 28(1), (3), and (4)
e: section 29
f: section 32
g: section 33(1) and (2)
h: section 34
i: section 35
j: section 36
k: any other provisions of subpart 2 section 173(d)
2: Without limiting subsection (1), a reference in any of the provisions listed in subsection (1) to a restraining order must be read as a reference to a foreign restraining order.
3: Sections 30 31
a: in a case where the foreign restraining order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign restraining order:
b: in a case where the foreign restraining order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:
c: in any other case, obtains the leave of the court to make the application.
4: Sections 23 33(3)
a: in a case where the foreign restraining order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign restraining order:
b: in a case where the foreign restraining order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:
c: in any other case, obtains the leave of the court to appear at the hearing of the application.
5: The court may grant special leave under subsection (3)﻿(c) or (4)﻿(c) if—
a: the applicant for relief or the person who is the subject of the foreign restraining order had good reasons—
i: for failing to make representations to the decision-making person or body who made the order in the foreign country; or
ii: in a case where the order was made by a court in the foreign country, for failing to attend the hearing at which the foreign restraining order was made; or
b: the evidence proposed to be adduced by the applicant for relief or other person who is subject to the foreign restraining order was not reasonably available to the applicant for relief or other person at the time when the applicant or other person—
i: was required to make submissions to the person or body that made the foreign restraining order in a foreign country; or
ii: at the time of the hearing at which the foreign restraining order was made by the court in a foreign country. 1991 No 120 s 66B(1) Section 134(1)﻿(ba) inserted 7 November 2015 section 4 Criminal Proceeds (Recovery) Amendment Act 2015
135: Effect of registering foreign restraining order in New Zealand
1: If a foreign restraining order is registered in New Zealand under section 56
a: is not to be disposed of, or dealt with, other than is provided for in the order; and
b: is to be under the Official Assignee’s custody and control.
2: If a foreign restraining order is registered in New Zealand, the Commissioner must give written notice of the order to any persons whose property is the subject of the order. Duration of foreign restraining order and further orders
136: Duration of foreign restraining order registered in New Zealand and associated further orders
1: The registration of a foreign restraining order in New Zealand expires on the earliest of the following dates:
a: the date when the foreign restraining order to which it relates expires or is revoked:
b: the date that is the end of 2 years after the date on which the foreign restraining order is registered in New Zealand:
c: the date when the Commissioner registers a foreign forfeiture order in New Zealand in respect of some or all of the property specified in the foreign restraining order:
d: the date on which the registration of the foreign restraining order in New Zealand has been cancelled under section 58
2: Despite subsection (1), if the registration of a foreign restraining order in New Zealand is extended as a result of an application to the High Court, it expires on the date specified by the High Court under section 137
3: On the expiry of the registration of a foreign restraining order in New Zealand, any further order made in relation to the foreign restraining order also expires.
137: Extension of duration of registration of foreign restraining order
1: If the High Court has registered a foreign restraining order in New Zealand, the applicant for that order may, before the registration of the restraining order expires, apply to the High Court for an extension of the duration of the registration of the foreign restraining order in New Zealand.
2: If an application is made under subsection (1), the High Court may order that the registration of a foreign restraining order be extended for a further period not exceeding 1 year.
2A: The duration of the registration of a foreign restraining order may be extended more than once under this section.
3: If an application is granted under this section, the registration of the foreign restraining order in New Zealand ceases at the time specified in the Court’s order. Section 137(2A) inserted 7 November 2015 section 5 Criminal Proceeds (Recovery) Amendment Act 2015
138: Additional matters relating to extension of registration of foreign restraining order
1: On making any order of the kind referred to in section 137
2: An applicant for an order under subsection (1) must serve a copy of the application on any person who, to the knowledge of the applicant, has an interest in the property that is the subject of the application. Section 138(1) amended 25 February 2012 section 15 Criminal Proceeds (Recovery) Amendment Act 2012
139: Exclusion of interest from foreign restraining order registered in New Zealand
1: A person (other than the respondent) who has a severable interest in property restrained under a foreign restraining order that is registered in New Zealand may apply to the High Court for the exclusion of that interest if the person—
a: has not already been a party to proceedings associated with the making of the foreign restraining order in the foreign country where it was made; and
b: has good reason for failing to have attended the hearing connected with the making of the foreign restraining order in the foreign country where it was made; and
c: has not unlawfully benefited from the significant foreign criminal activity to which the foreign restraining order relates; and
d: has already made an application (whether granted or not) under section 30 section 134(3)
2: The High Court may, if it is satisfied of the matters in subsection (1), make an order—
a: directing the Crown to transfer the interest to the applicant; or
b: that the Crown pay to the applicant an amount equal to the value of the interest declared by the Court.
3: An order under subsection (1) does not affect a restraining order, insofar as it applies to property that is not the subject of the order. Registering foreign forfeiture orders
140: Who may apply to register foreign forfeiture order
The Commissioner may apply to register a foreign forfeiture order in New Zealand if authorised by the Attorney-General under section 55
141: Application to register foreign forfeiture order made to High Court
If authorised to apply to register a foreign forfeiture order in New Zealand under section 55
142: Notice of registration of foreign forfeiture order
1: The Commissioner must serve notice of having applied to register a foreign forfeiture order in New Zealand, so far as it is practicable to do so, on every person who, to the knowledge of the Commissioner, has an interest in the property to which the order relates.
2: The Commissioner must also serve notice of the intention to register the foreign forfeiture order in New Zealand on the Official Assignee.
143: Provisions of subpart 3 of Part 2 applying to registering foreign forfeiture orders
1: The following sections of subpart 3 section 55
a: section 47
b: any other provision of subpart 3 section 173
2: Section 148
a: in a case where the foreign forfeiture order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign forfeiture order:
b: in a case where the foreign forfeiture order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:
c: in any other case, obtains the leave of the court to make the application.
3: Sections 46 64
a: in a case where the foreign forfeiture order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign forfeiture order:
b: in a case where the foreign forfeiture order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:
c: in any other case, obtains the leave of the court to appear at the hearing of the application.
4: The court may grant special leave under subsection (2)﻿(c) or (3)﻿(c) if—
a: the applicant for relief or the person who is the subject of the foreign forfeiture order had good reasons—
i: for failing to make representations to the decision-making person or body who made the order in the foreign country; or
ii: in a case where the order was made by a court in the foreign country, for failing to attend the hearing at which the foreign forfeiture order was made; or
b: the evidence proposed to be adduced by the applicant for relief or other person who is subject to the foreign forfeiture order was not reasonably available to the applicant for relief or other person at the time when the applicant or other person—
i: was required to make submissions to the person or body that made the foreign forfeiture order in a foreign country; or
ii: at the time of the hearing at which the foreign forfeiture order was made by the court in a foreign country.
144: Registering foreign forfeiture order
The effect of registering a foreign forfeiture order in New Zealand under section 56
a: vests in the Crown absolutely; and
b: is in the custody and control of the Official Assignee.
145: Notice of registration of foreign forfeiture order may be recorded on registers
1: Subsection (2) applies if an application is made for a foreign forfeiture order to be registered in New Zealand against property of a kind covered by a New Zealand enactment that enables the registration of—
a: title to that property; or
b: charges over that property.
2: If this subsection applies, the High Court may, at any time before finally determining the application, order any authority responsible for administering an enactment of the kind referred to in subsection (1) (an Authority
3: The Court must order an Authority to cancel an entry made on a register under subsection (2) if—
a: the foreign forfeiture order to which registration relates is cancelled or expired; or
b: the specified period (as described in section 86(2)
c: the foreign forfeiture order in relation to which registration is sought is amended to exclude that property.
146: Additional matters in respect of registering foreign forfeiture order
1: On registering a foreign forfeiture order in New Zealand, the High Court may do either or both of the following:
a: declare the nature, extent, and value of any person’s interest in property specified in the order:
b: give any directions that may be necessary and convenient for giving effect to the foreign forfeiture order.
2: Without limiting the generality of subsection (1)﻿(b), if a Court registers a foreign forfeiture order in New Zealand against any property the title to which is passed by registration on a register maintained under any New Zealand enactment, the Court may direct an officer of the Court to do anything reasonably necessary to obtain possession of any document required to effect the transfer of the property and for that purpose may, by warrant, authorise an officer to enter and search any place or thing and seize any document.
3: Part 4 2012 subpart 6 section 101 1991 No 120 s 15(3)–(7) Section 146(3) amended 1 October 2012 section 219 Search and Surveillance Act 2012
147: Registering foreign forfeiture order relating to land
1: Nothing in section 144 section 89
2: If the High Court registers a foreign forfeiture order in New Zealand in respect of an estate or interest in land, the order must be transmitted by the Registrar of the Court to the Registrar-General of Land or the Registrar of Deeds, as the case may be, for the purposes of registration under the Land Transfer Act 2017 Deeds Registration Act 1908 Section 147(1) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 147(2) amended 12 November 2018 section 250 Land Transfer Act 2017 Relief from foreign forfeiture order registered in New Zealand
148: Relief from foreign forfeiture order registered in New Zealand
A person who claims an interest in property sought to be forfeited under a foreign forfeiture order registered in New Zealand may, before the date that is 6 months from the date on which the foreign forfeiture order is registered, apply to the High Court for an order if the person is a person to whom section 143(2)﻿(a), (b), or (c)
149: High Court may grant relief from foreign forfeiture order registered in New Zealand
1: The High Court may make an order of the kind described in subsection (2) if it is satisfied—
a: of the matters in section 148
b: that the applicant has an interest in the property to which the order relates.
2: The High Court may make an order—
a: directing the Crown to transfer the interest to the applicant; or
b: that the Crown pay to the applicant an amount equal to the value of the interest declared by the Court.
3: The Court may refuse to make an order of the kind described in subsection (2) if it is satisfied that—
a: the applicant was involved in the significant foreign criminal activity to which the foreign forfeiture order relates; or
b: the applicant did not acquire the interest in the property in good faith or for value (without knowing or having reason to believe that the property was tainted property) in circumstances where the applicant acquired the interest at the time of, or after, the commission of the offence or serious criminal activity; or
c: the applicant has unlawfully benefited from the significant foreign criminal activity to which the foreign forfeiture order relates.
4: Nothing in subsection (3) requires the Court to refuse making an order.
9: Miscellaneous
Offences
150: Contravention of restraining orders or foreign restraining orders
1: Every person commits an offence who, knowing that a restraining order has been made or that a foreign restraining order has been registered in New Zealand in respect of property, disposes or otherwise deals with that property in contravention of the order.
2: Every person who commits an offence against this section is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000 or both:
b: in the case of a body corporate, to a fine not exceeding $60,000. 1991 No 120 s 58 Section 150(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
151: Contravention of forfeiture orders or foreign forfeiture orders
1: Every person commits an offence who, knowing that an assets forfeiture order or profit forfeiture order or instrument forfeiture order is in force or a foreign forfeiture order is registered in New Zealand in relation to property to which title is passed by registration on a register maintained under any New Zealand enactment, 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
a: in the case of an individual, to imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000, or both:
b: in the case of a body corporate, to a fine not exceeding $60,000. 1991 No 120 s 84 Section 151(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
152: Failing to comply with orders and search warrants
1: Every person commits an offence who, being a person against whom an examination order or production order is made,—
a: fails, without reasonable excuse, to comply with that order; or
b: in purported compliance with the order, produces or makes available to the Commissioner a document or makes a statement which the person knows is false or misleading in a material particular.
2: Every person commits an offence who fails, without reasonable excuse, to comply with a search warrant issued under this Act that relates to his or her premises.
3: Every person who commits an offence against subsection (1) or (2) is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 1 year or a fine not exceeding $15,000, or both:
b: in the case of a body corporate, to a fine not exceeding $40,000. 1991 No 120 s 76 Section 152(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
153: Search order not to be disclosed
1: Any person (including a financial institution) that is, or has been, subject to a search order must not disclose the existence or the operation of the order to any person except—
a: the Commissioner 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 purposes of ensuring compliance with the order; or
c: a lawyer, for the purpose of obtaining legal advice or representation in relation to the order.
2: A person referred to in subsection (1)﻿(a) must not disclose the existence or operation of the order except—
a: to another person referred to in subsection (1); and
b: for the purpose of the performance of his or her duties.
3: A person referred to in subsection (1)﻿(b) must not disclose the existence or operation of the order except—
a: to another person referred to in subsection (1); and
b: for the purpose of ensuring that the order is complied with or obtaining legal advice or representation in relation to the order.
4: A person referred to in subsection (1)﻿(c) must not disclose the existence or operation of the order except—
a: to another person referred to in subsection (1); and
b: for the purpose of giving legal advice or making representations in relation to the order.
5: Nothing in subsections (1) to (4) prevents the disclosure of the existence or operation of a search order in connection with, or in the course of, proceedings before a court.
6: In this section and section 154 search order
a: a search warrant:
b: an examination order or production order.
154: Offence to disclose existence or operation of search order
Every person who knowingly contravenes any of subsections (1) to (4) of section 153 conviction
a: in the case of an individual, to imprisonment for a term not exceeding 1 year or a fine not exceeding $15,000, or both:
b: in the case of a body corporate, to a fine not exceeding $40,000. 1991 No 120 s 81 Section 154 amended 1 July 2013 section 413 Criminal Procedure Act 2011
155: Offence of obstruction
Every person who, without reasonable excuse, intentionally obstructs any person exercising a power or carrying out a duty under this Act commits an offence and is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 1 year or a fine not exceeding $15,000 or both:
b: in the case of a body corporate, to a fine not exceeding $40,000. Section 155 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Compliance not actionable
156: Compliance not actionable
No proceedings, civil or criminal, may be brought against any person because of that person’s compliance with any provision in subpart 7 Indemnity
157: Indemnity for enforcement officers
1: Every enforcement officer is 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 or power conferred or imposed on the enforcement officer by or under this Act or sections 142A to 142Q
2: Subsection (1) does not apply if it is shown that the exercise or performance, or purported exercise or performance, or omission to exercise or perform, the function or power was in bad faith.
3: The indemnity conferred by subsection (1) extends to legal costs in defending a proceeding.
4: Nothing in this section limits or affects any provision of the Crown Proceedings Act 1950 Crimes Act 1961
5: Any money required for the purposes of this section must be paid out of a Crown bank account without further appropriation.
6: In this section enforcement officer
a: means—
i: the Official Assignee:
ii: the Commissioner of Police or any member of the police:
iii: a prosecutor acting on behalf of the Crown:
iv: any person referred to in section 118
b: includes any delegate of the enforcement officer exercising functions and powers under this Act or sections 142A to 142Q 1991 No 120 s 62 Operation of other laws
158: 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 imposition of pecuniary penalties. 1991 No 120 s 91 Effect of exercise of powers on duties of confidentiality
159: Duties as to confidentiality generally overridden
1: Sections 105 107
2: Compliance by any person with any of sections 105 107
3: This section is subject to sections 160 to 162 1990 No 51 s 23 Section 159(3) amended 25 February 2012 section 16 Criminal Proceeds (Recovery) Amendment Act 2012
160: Legal professional privilege
1: Nothing in sections 105 107
2: Despite subsection (1), the Commissioner may, by notice in writing to any lawyer who the Commissioner has reason to believe may have acted for any person who may be connected with any investigation, require that lawyer to supply to the Commissioner the last known name and address of that client.
3: For the purposes of this section, a communication is a privileged communication only if—
a: it is a confidential communication, whether oral or written or made directly or indirectly through an agent, passing between—
i: a lawyer in his or her professional capacity and another lawyer in that capacity; or
ii: a lawyer in his or her professional capacity and his or her client; 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.
4: If the information or document consists wholly of payments, income, expenditure, or financial transactions of a specified person (whether a lawyer, his or her client, or any other person), it is not 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 lawyer in connection with—
a: a trust account of the lawyer within the meaning of section 6
b: the operation of a financial institution within the meaning of section 3
5: If any person refuses to disclose any information or document on the ground that it is a privileged communication under this section, the Commissioner or that person may apply to a District Court Judge for an order determining whether or not the claim of privilege is valid.
6: For the purposes of determining any application under subsection (5), the District Court Judge may require the information or document to be produced to him or her.
7: For the purposes of this section, 1990 No 51 s 24 Section 160(4)﻿(a) amended 25 February 2012 section 17(1) Criminal Proceeds (Recovery) Amendment Act 2012 Section 160(7) amended 25 February 2012 section 17(2) Criminal Proceeds (Recovery) Amendment Act 2012
161: Privilege in relation to tax advice
1: Nothing in sections 105 107
2: Despite subsection (1), the Commissioner may, by notice in writing to any tax advisor who the Commissioner has reason to believe may have acted for any person who may be connected with any investigation, require that tax advisor to supply to the Commissioner the last known name and address of that client.
3: If any person refuses to disclose any information or document under this section, the Commissioner or that person may apply to a District Court Judge for an order determining whether or not that refusal is valid.
4: For the purposes of determining any application under subsection (3), the District Court Judge may require the information or document to be produced to him or her.
5: For the purposes of this section,— tax advice document section 20B tax advisor section 20B
162: Certain provisions not to apply to police, Inland Revenue, Statistics, and Reserve Bank officers
Nothing in sections 105 107
a: any person acting in his or her capacity as an officer of the Inland Revenue Department:
b: any person acting in his or her capacity as a member of the police or the Police Department:
c: any person acting in his or her capacity as a member of Statistics New Zealand:
d: any person acting in his or her capacity as an officer or employee of the Reserve Bank of New Zealand. 1990 No 51 s 25
163: Privilege against self-incrimination no excuse
No person is excused from answering any question, supplying any information, producing any document, or providing any explanation under section 105 107 1990 No 51 s 27 Admissibility of evidence
164: Admissibility of evidence
1: No evidence that is lawfully obtained under section 105 107
2: This section is subject to section 165 1990 No 51 s 26
165: Admissibility of self-incriminating statement made in response to production or examination order
General
1: Any self-incriminating statement that a person makes orally, in the course of doing any of the following in response to a production or examination order, is not admissible against them in any civil or criminal proceedings:
a: answering any question:
b: supplying any information:
c: producing any document:
d: providing any explanation.
2: Subsection (1) applies whether or not the statement is recorded in writing.
3: Subsections (4) to (8) set out exceptions to subsection (1). Exception for civil proceedings
4: Any statement that a person makes in response to a production or examination order may be used in evidence against them in any civil proceedings specified in section 10(1) Exceptions for criminal proceedings
5: Any self-incriminating statement referred to in subsection (1) that a person makes may be used in evidence against them in any prosecution for an offence against section 109
6: Any statement that a person makes in relation to their failure to comply with a production or examination order may be used in evidence against them in any prosecution for an offence against section 152
7: Any false or misleading statement that a person makes in response to a production or examination order may be used in evidence against them in any prosecution for an offence against section 152
8: Any false or misleading document that a person produces in response to a production or examination order may be used in evidence against them in any prosecution for an offence against section 152 Definitions
9: In this section,— false or misleading production or examination order
a: a production order made under section 105
b: an examination order made under section 107
10: In this section, doing any thing in response to a production or examination order section 105 107 Section 165 replaced 1 April 2023 section 38 Criminal Proceeds (Recovery) Amendment Act 2023
166: Admissibility of evidence given to court or Official Assignee
1: Subsection (2) applies if—
a: any person is examined before a court, or a registrar of a court, or the Official Assignee, pursuant to an order made under this Act; or
b: any person is required to furnish to the Official Assignee a statement on oath.
2: If this subsection applies—
a: any self-incriminating statement or disclosure made by the person in response to the question or any self-incriminating statement furnished in response to the requirement is not admissible against that person in any civil or criminal proceedings, other than—
i: 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
ii: the prosecution of that person for an offence against section 109
iii: the proceedings in relation to which the statement was made or the document was given:
b: any other evidence provided by the person is admissible in civil or criminal proceedings, subject to any enactment or rule of law to the contrary. 1991 No 120 s 49 Section 166(2)﻿(a)﻿(ii) amended 1 April 2023 section 40 Criminal Proceeds (Recovery) Amendment Act 2023 Arrangements to avoid operation of this Act or Sentencing Act 2002
167: Arrangements to avoid operation of this Act or Sentencing Act 2002
1: In this section, arrangement
a: any agreement, arrangement, understanding, promise of undertaking whether express or implied and whether or not enforceable or intended to be enforceable at law; and
b: any scheme, plan, proposal, action, course of action, or course of conduct.
2: If the High Court (or if the matter relates to an instrument of crime in relation to which proceedings were commenced in the District Court, the District Court) is satisfied that a person has an arrangement for the purposes of directly or indirectly defeating, avoiding, preventing, or impeding the operation of this Act or sections 142A to 142Q
a: make an order declaring the arrangement to be void wholly or in part; or
b: make an order varying the arrangement in whole or in part.
3: The High Court or District Court may also make other orders that it considers necessary in the circumstances to give effect to an order made under subsection (2), including, without limitation, an order to do all or any of the following:
a: dispose of property (including selling property):
b: pay money to any person:
c: dispose of the proceeds of any disposal of the property:
d: create a charge on property in favour of a person and enforce that charge.
4: The High Court or District Court may rescind or vary any order made under this section. Criminal Assets Recovery Act 1990 s 59 (NSW) Notices
168: Giving of notices
1: If a notice or other document is to be given to a person for the purposes of this Act, it may be given—
a: by delivering it personally to the person; or
b: by delivering it at the usual or last known place of residence or business of the person, including by facsimile; or
c: by sending it by pre-paid post addressed to the person at the usual or last known place of residence or business of the person.
2: If a notice or other document is to be given to a corporation for the purposes of this Act, service on an officer of the corporation, or on the registered office of the corporation, in accordance with subsection (1) is deemed to be service on the corporation.
3: If a notice or other document is to be given to a partnership for the purposes of this Act, service on any one of the partners in accordance with subsections (1) and (2) is deemed to be service on the partnership.
4: If a notice or other document is sent by post to a person in accordance with subsection (1)﻿(c), it is deemed, in the absence of proof to the contrary, to have been given on the third day after the day on which it was posted. Effect of death
169: Effect of death
1: Any notice or other document authorised or required to be given to a person under this Act is, if the person is dead, sufficiently given if given to the person’s legal personal representative.
2: A reference in this Act to an interest in property of a person is, in the case of a person who is dead, a reference to an interest in the property that the person had immediately before death.
3: An order can be applied for and made under this Act—
a: in respect of a person’s interest in property even if the person is dead; and
b: on the basis of the activities of a person who is dead.
170: Effect of death of joint owner of restrained property
1: If a person has an interest in property as joint owner of the property, the person’s death after a restraining order is made in respect of the interest does not (while the order is in force) operate to vest the interest in the surviving joint owner or owners and the restraining order continues to apply to the interest as if the person had not died.
2: An assets forfeiture order or instrument forfeiture order made in respect of that interest applies as if the order took effect in relation to the interest immediately before the person died.
3: If a restraining order ceases to apply to an interest in property without an assets forfeiture order or instrument forfeiture order being made in respect of that interest, subsection (1) is taken not to have applied to the interest. Repeal
171: Repeal
The Proceeds of Crime Act 1991 2009-12-01 Proceeds of Crime Act 1991 Transitional provisions
172: Proceeds of Crime Act 1991 continues in force for certain purposes
Despite section 171
a: continuing and completing any proceedings or other matter commenced under that Act before the commencement of this Act (including the making or enforcement of any order arising from those proceedings):
b: the exercise of any power or function under that Act in relation to any matter referred to in paragraph (a). Regulations and rules
173: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing applications, notices, and other documents for the purposes of this Act and requiring their use:
b: prescribing forms for the purposes of this Act and requiring their use:
c: providing for the service of notices and other documents under this Act to be dispensed with in such circumstances as are specified in the regulations:
d: providing for the creation of charges in respect of property to which any profit forfeiture order applies, specifying the priority of any such charge in relation to any other encumbrances and the circumstances in which a charge ceases to have effect, and providing for any other related matters:
e: prescribing or providing for the costs recoverable by the Official Assignee under section 87
f: setting out procedures for the return or disposal of documents or other evidence seized, produced, or surrendered under subpart 7
g: providing for such other matters as are contemplated by, or are necessary for giving full effect to, this Act and for its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 1991 No 120 s 89 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 173(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
174: Rules
1: 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.
2: See section 148 section 228 1991 No 120 s 90 Section 174(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
10: Consequential amendments to other enactments
Amendments to Crimes Act 1961
175: Amendments to Crimes Act 1961
Sections 176 to 178 Crimes Act 1961 2009-12-01 Crimes Act 1961
176: Defence of enforcement of enactment
Section 244(b) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
177: Destruction of relevant records made by use of interception device
Section 312J
1A: In subsection (1), proceedings sections 142A to 142Q
178: Restriction on admissibility of evidence of private communications lawfully intercepted
Section 312N
i: offences of 2 or more of those kinds specified in paragraphs (a) to (h); or
j: an offence specified in paragraphs (a) to (h) and the evidence is relevant to a proceeding under the Criminal Proceeds (Recovery) Act 2009 or a proceeding under sections 142A to 142Q Amendments to Customs and Excise Act 1996
179: Amendments to Customs and Excise Act 1996
Sections 180 to 182 Customs and Excise Act 1996 2009-12-01 Customs and Excise Act 1996
180: Detention of goods suspected to be tainted property
1: Section 166A Detention of goods suspected to be instrument of crime or tainted property
2: Section 166A
c: he or she has good cause to suspect that the goods are an instrument of crime or tainted property (as those terms are defined in section 5(1)
181: Further provisions about detention under section 166A
Section 166C(4)﻿(d) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
182: Return of goods detained under section 166A
Section 166D(3)
a: an information is laid in respect of the relevant qualifying instrument forfeiture offence (as defined in section 5(1) Amendments to Evidence Act 2006
183: Amendment to Evidence Act 2006
Section 184 Evidence Act 2006 2009-12-01 Evidence Act 2006
184: Undercover police officers
Section 108
6: This section also applies, with any necessary modifications, in any case where a person is being, or is to be, proceeded against under—
a: the Criminal Proceeds (Recovery) Act 2009; or
b: sections 142A to 142Q Amendments to Financial Transactions Reporting Act 1996
185: Amendments to Financial Transactions Reporting Act 1996
Sections 186 to 195 Financial Transactions Reporting Act 1996 2009-12-01 Financial Transactions Reporting Act 1996
186: Title amended
The Long Title is amended by omitting Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
187: Verification of identity where money laundering or proceeds of crime suspected
1: The heading to section 11 proceeds of crime proceeds of significant criminal activity
2: Section 11(1)﻿(b)﻿(ii) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
188: Offences
Section 13(1)﻿(j)﻿(ii)﻿(B) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
189: Financial institutions to report suspicious transactions
Section 15(1)﻿(b)﻿(ii) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
190: Auditors may report suspicious transactions
Section 16(b) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
191: Protection of identity of persons making suspicious transaction reports
1: Section 21(2)﻿(b) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
2: Section 21(2)
c: any activity relating to an application for a restraining order, assets forfeiture order, or profit forfeiture order under the Criminal Proceeds (Recovery) Act 2009:
d: any activity relating to the making of an instrument forfeiture order under section 142N
e: the administration of the Mutual Assistance in Criminal Matters Act 1992.
192: Offences
Section 22(1)﻿(b)﻿(ii) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
193: Commissioner to issue guidelines relating to reporting of suspicious transactions
Section 24(1)﻿(a)﻿(ii) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
194: Application of Privacy Act 1993
1: Section 28(c) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
2: Section 28
d: any activity relating to an application for a restraining order, assets forfeiture order, or profit forfeiture order under the Criminal Proceeds (Recovery) Act 2009:
e: any activity relating to the making of an instrument forfeiture order under section 142N
f: the administration of the Mutual Assistance in Criminal Matters Act 1992.
195: Application of Privacy Act 1993
1: Section 43(b) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
2: Section 43
c: any activity relating to an application for a restraining order, assets forfeiture order, or profit forfeiture order under the Criminal Proceeds (Recovery) Act 2009:
d: any activity relating to the making of an instrument forfeiture order under section 142N
e: the administration of the Mutual Assistance in Criminal Matters Act 1992. Amendments to International Crimes and International Criminal Court Act 2000
196: Amendments to International Crimes and International Criminal Court Act 2000
Sections 197 to 201 International Crimes and International Criminal Court Act 2000 2009-12-01 International Crimes and International Criminal Court Act 2000
197: Interpretation
1: Paragraph (b) of the definition of forfeiture order section 4 pecuniary penalty order profit forfeiture order
2: The definition of tainted property section 4 tainted property
a: instrument of crime as defined in section 5(1)
b: tainted property as defined in section 5(1)
198: Attorney-General may authorise measures
Section 112(1)
1: If the Attorney-General gives authority for the request for assistance in identifying, tracing and freezing, or seizing tainted property to proceed, the Attorney-General may authorise the appropriate New Zealand authority to apply for 1 or more of the following orders or warrants:
a: a search warrant under section 101 or 102
b: any restraining order made under the Criminal Proceeds (Recovery) Act 2009:
c: a production order under section 104
199: Method of registration of order
Section 128(3) Proceeds of Crimes Act 1991 Criminal Proceeds (Recovery) Act 2009
200: New sections 130 and 131 substituted
Sections 130 and 131
130: Effect of registration of order
1: A forfeiture order registered under section 128 has effect and may be enforced as if it were a profit forfeiture order—
a: made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and
b: entered on the date of registration.
2: Subsection (1) applies subject to sections 132 and 133.
3: If a forfeiture order is registered under section 128,—
a: subpart 3 Part 2
b: the property must be disposed of, or otherwise dealt with, in accordance with the order of, or directions given by, the ICC and the Attorney-General may give such directions as may be necessary to give effect to that order or those directions; and
c: if, for any reason, the Attorney-General is not able to dispose of the property in accordance with the ICC’s order or directions, the Attorney-General may, after consulting with the ICC, arrange for the property to be transferred to the person in whom it was vested immediately before the forfeiture order was made.
4: A restraining order registered in accordance with section 112(2) has effect, and may be enforced, as if it were a restraining order—
a: made under the Criminal Proceeds (Recovery) Act 2009; and
b: entered on the date of registration.
131: Forfeiture order may be treated as profit forfeiture order
1: If the Attorney-General is unable to give effect to a forfeiture order, the Attorney-General must take measures to recover—
a: the value specified by the ICC as the value of the tainted property ordered by the ICC to be forfeited; or
b: if the ICC has not specified the value of the tainted property, the value that, in the opinion of the Attorney-General, is the value of the tainted property ordered by the ICC to be forfeited.
2: In a case to which subsection (1) applies, the forfeiture order is to be treated as a profit forfeiture order for the equivalent amount and may be enforced accordingly as if it were a profit forfeiture order—
a: made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and
b: entered on the date of registration.
201: Cancellation of registration order
Section 134(4) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009 Amendments to International War Crimes Tribunals Act 1995
202: Amendments to International War Crimes Tribunals Act 1995
Sections 203 to 205 International War Crimes Tribunals Act 1995 2009-12-01 International War Crimes Tribunals Act 1995
203: New section 43 substituted
Section 43
43: Effect of registration of order
Subject to sections 44 to 47, a forfeiture order registered in accordance with section 42 has effect and may be enforced as if it were a profit forfeiture order made by the High Court under the Criminal Proceeds (Recovery) Act 2009 and entered on the date of registration.
204: Registered forfeiture orders
Section 44
a: subpart 3 Part 2
205: Cancellation of registration of forfeiture order
Section 47(4) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009 Amendment to Judicature Act 1908 Heading repealed 1 March 2017 section 183(b) Senior Courts Act 2016
206: Amendment to Judicature Act 1908
2009-12-01 Judicature Act 1908 Section 206 repealed 1 March 2017 section 183(b) Senior Courts Act 2016
207: Application of Part 4A
Section 207 repealed 1 March 2017 section 183(b) Senior Courts Act 2016 Amendments to Legal Services Act 2000
208: Amendments to Legal Services Act 2000
Sections 209 and 210 Legal Services Act 2000 2009-12-01 Legal Services Act 2000
209: When legal aid may be granted: civil matters
Section 9
11: The Agency may grant legal aid to an applicant in respect of a civil proceeding under the Criminal Proceeds (Recovery) Act 2009 if the Agency considers that the interests of justice require that the applicant be granted legal aid.
12: In considering whether or not the interests of justice require that an applicant be granted legal aid under subsection (7), the Agency must have regard to—
a: whether there are any serious consequences for the applicant if legal aid is not granted; and
b: whether there are any complex factual, legal, or evidential matters in the proceeding that require the applicant to be legally represented.
13: Subsections (3) and (4) do not apply to an application for legal aid in respect of a civil proceeding under the Criminal Proceeds (Recovery) Act 2009.
210: Schedule 1 amended
Schedule 1
f: the value of the subject matter of the proceedings, unless the Agency determines a proportion of that value that should be included in the assessment of the person’s total assets:
g: the value of any property that is the subject of a restraining order under the Criminal Proceeds (Recovery) Act 2009. Amendment to Misuse of Drugs Act 1975
211: Amendment to Misuse of Drugs Act 1975
Section 212 Misuse of Drugs Act 1975 2009-12-01 Misuse of Drugs Act 1975
212: Laundering proceeds of drug offences
Section 12B(6)﻿(b) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009 Amendment to Summary Proceedings Act 1957
213: Amendment to Summary Proceedings Act 1957
Section 214 Summary Proceedings Act 1957 2009-12-01 Summary Proceedings Act 1957
214: Part 2 of Schedule 1 amended
1: Part 2 of Schedule 1
2: Part 2 of Schedule 1 The following table is small in size and has 3 columns. This table amends Part 2 of Schedule 1 of the Criminal Investigations (Bodily Samples) Act 1995 and should be read with that table to provide understanding of the context. Criminal Proceeds (Recovery) Act 2009 150 Contravention of restraining orders or foreign restraining orders 151 Contravention of forfeiture orders or foreign forfeiture orders 152 Failing to comply with orders and search warrants 154 Offence to disclose existence or operation of search order 155 Offence of obstruction Amendments to Tax Administration Act 1994
215: Amendments to Tax Administration Act 1994
Sections 216 and 217 Tax Administration Act 1994 2009-12-01 Tax Administration Act 1994
216: Officers to maintain secrecy
Section 81(4)
gc: communicating to any authorised person (as defined in section 98(1)
217: Further secrecy requirements
1: Section 87(4)
dc: where it is given to any authorised person (as defined in section 98(1)
2: Section 87(5)﻿(a)﻿(i) (gc), (gb), Amendments to Terrorism Suppression Act 2002
218: Amendments to Terrorism Suppression Act 2002
Sections 219 to 225 Terrorism Suppression Act 2002 2009-12-01 Terrorism Suppression Act 2002
219: Prohibition on dealing with property of, or derived or generated from property of, terrorist and associated entities
Section 9(3)﻿(b) section 50 of the Proceeds of Crime Act 1991 section 80
220: Further provisions about detention under section 47A
Section 47C(5)﻿(d) Proceeds of Crime Act 1991 Criminal Proceeds (Recovery) Act 2009
221: Variation, revocation, or expiry of direction
Section 50(3)﻿(b)
b: on a forfeiture order being made under section 55 in relation to the property concerned, in which case section 85
222: New section 51 substituted
Section 51
51: Further provisions on management of property subject to section 9
The following sections of the Criminal Proceeds (Recovery) Act 2009 apply, with the following (and any other necessary) modifications, to property that is the subject of a direction under section 48, as if the direction were a restraining order under that Act:
a: section 27
b: section 32
c: section 80
d: section 81
e: section 87
f: sections 88 to 90
g: section 150
h: section 157
223: New section 57 substituted
Section 57
57: Further provisions relating to orders under section 55
The following sections of the Criminal Proceeds (Recovery) Act 2009 and the Sentencing Act 2002 apply, with the following (and all other necessary) modifications, to the making, effect, operation, and discharge of an order under section 55, as if the order were an instrument forfeiture order under section 142N
a: sections 70, 72, and 73
i: the reference in section 73(2)
ii: references in section 73
b: section 85
i: when the time for bringing an appeal against the decision of the Court expires, if no such appeal has been brought; or
ii: if an appeal against the decision of the Court has been brought, when the appeal is finally determined or withdrawn, whichever occurs first:
c: section 142N(3)﻿(a), (4), and (5)
224: New section 71 substituted
Section 71
71: Criminal Proceeds (Recovery) Act 2009 not affected
Nothing in this Act affects the Criminal Proceeds (Recovery) Act 2009.
225: Section 81 repealed
Section 81