Brokering (Weapons and Related Items) Controls Act 2018

1: Title
This Act is the Brokering (Weapons and Related Items) Controls Act 2018.
2: Commencement
1: The following provisions come into force on 1 February 2019:
a: Part 1
b: subparts 2 3
c: sections 36 to 42
2: The rest of this Act comes into force on 1 June 2019.
1: Preliminary provisions
3: Purpose
The purpose of this Act is to—
a: regulate the brokering of weapons and related items; and
b: support New Zealand’s commitments under the Arms Trade Treaty.
4: Application
1: This Act applies to any brokering activity that is carried out—
a: in any place (including any brokering activity that is carried out wholly or partially outside New Zealand) and by a person—
i: who is in New Zealand; or
ii: who is a New Zealand citizen or ordinarily resident in New Zealand; or
iii: that is an entity incorporated or registered under the law of New Zealand; or
b: wholly or partially on board a ship or an aircraft described in section 36(1)﻿(b)
2: See sections 11 36
5: Interpretation
1: In this Act, unless the context otherwise requires,— Arms Trade Treaty broker subpart 2 brokering activity section 6 department section 2(1) dual-use goods
a: that may have a civilian use but that are intended for military end-use or that may have a military application; and
b: that fall within a specified category equivalent overseas regime section 7 goods
a: has the meaning given in section 5(1)
b: includes documents (within the meaning of section 5(1) military end-use
a: incorporation into military items that fall within a specified category; or
b: use, production, or testing of equipment and components for the development, production, or maintenance of military items that fall within a specified category; or
c: use of any unfinished products for the production of military items that fall within a specified category Minister ordinarily resident in New Zealand section 4 permit subpart 3 prohibited use
a: the development, production, or deployment of nuclear, chemical, or biological weapons or their means of delivery:
b: military end-use:
c: use as parts or components of military items that fall within a category of the strategic goods list that is specified for the purposes of the definition of military end-use Secretary specified category dual-use goods military end-use strategic goods list section 96 weapon or related item
2: The Secretary may, by notice
3: A notice under subsection (2) is secondary legislation ( see Part 3 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 The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	publish it in the Gazette •	publish it on a website maintained by, or on behalf of, the Secretary 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 5(2) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 5(3) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
6: Meaning of brokering activity
In this Act, brokering activity
a: means arranging, facilitating, or negotiating a transaction that involves the international transfer of weapons or related items from a place outside New Zealand to another place outside New Zealand; and
b: includes,—
i: in relation to a transaction described in paragraph (a), acting as an agent for a person involved in the transaction or as an intermediary between 2 or more persons involved in the transaction; and
ii: acquiring or storing weapons or related items in a place outside New Zealand for the purpose of transferring the weapons or related items to any person outside New Zealand; but
c: does not include the provision of any service that is merely ancillary to an activity described in paragraph (a) or (b) (for example, the provision of administrative, customs broking, or financial services in relation to weapons or related items).
7: Meaning of equivalent overseas regime
In this Act, an overseas regime that regulates brokering activity, or that imposes export controls in relation to weapons or related items, is an equivalent overseas regime
a: substantially the same as the regime under this Act; or
b: sufficiently equivalent, in relation to the regulation of brokering activity in accordance with the Arms Trade Treaty, to the regime under this Act.
8: Transitional, savings, and related provisions
The transitional, savings, and related provisions (if any) set out in Schedule 1
9: Act binds the Crown
This Act binds the Crown.
2: Brokering activity, registration, and permits
1: Main requirements and offences relating to brokering activity
10: Registration and permit required for brokering activity
A person must not carry out a brokering activity unless the person—
a: is registered as a broker; and
b: has a permit for the activity.
11: Exceptions to requirements for registration and permit
1: Section 10
a: who carries out a brokering activity in relation to a weapon or related item that is dual-use goods; and
b: who, before the person carries out the brokering activity, has taken reasonable steps to ensure that the dual-use goods will not be used for a prohibited use.
2: Section 10
a: who carries out a brokering activity from a place outside New Zealand; and
b: who complies with an equivalent overseas regime in relation to the brokering activity.
3: Section 10 section 10
4: Section 10
12: Offence to carry out brokering activity without registration or permit
1: A person commits an offence if—
a: the person carries out a brokering activity in breach of section 10
b: none of the exceptions described in section 11
c: at the time that the person carries out the activity, the person knows or ought to know that (except in some circumstances) a person must not carry out a brokering activity unless the person—
i: is registered as a broker; and
ii: has a permit for the activity.
2: It may be presumed, in the absence of any evidence to the contrary, that an exception described in section 11
3: The prosecutor need not assert, in a charging document relating to an offence against subsection (1), that an exception described in section 11
4: A person who commits an offence against subsection (1) is liable on conviction,—
a: in the case of an individual, to a term of imprisonment not exceeding 5 years or a fine not exceeding the amount described in subsection (5), or both:
b: in any other case, to a fine not exceeding the amount described in subsection (5).
5: The maximum amount of the fine is the greater of—
a: $100,000 (in the case of an individual) or $1 million (in any other case); and
b: if a court is satisfied that the offence occurred in the course of producing a commercial gain, and if the value of that commercial gain can be readily ascertained, 3 times the value of that commercial gain.
13: Broker must comply with conditions of registration and permit
A broker must comply with—
a: any conditions of the broker’s registration; and
b: any conditions of a permit held by the broker.
14: Offence to breach conditions of registration or permit when carrying out brokering activity
1: A broker who knowingly or recklessly carries out a brokering activity in breach of section 13
a: in the case of an individual, to a term of imprisonment not exceeding 5 years or a fine not exceeding the amount described in subsection (2), or both:
b: in any other case, to a fine not exceeding the amount described in subsection (2).
2: The maximum amount of the fine is the greater of—
a: $100,000 (in the case of an individual) or $1 million (in any other case); and
b: if a court is satisfied that the offence occurred in the course of producing a commercial gain, and if the value of that commercial gain can be readily ascertained, 3 times the value of that commercial gain.
15: Offence to breach conditions of registration or permit other than in course of carrying out brokering activity
A broker who, without reasonable excuse and other than in the course of carrying out a brokering activity, breaches section 13
a: in the case of an individual, to a term of imprisonment not exceeding 6 months or a fine not exceeding $10,000, or both:
b: in any other case, to a fine not exceeding $20,000.
2: Registration of brokers
16: Application for registration
1: A person may apply to the Secretary for registration as a broker.
2: The application must be made in accordance with section 38
17: Criteria for registration
1: The Secretary may register a person as a broker only if the Secretary is satisfied that the person is a fit and proper person.
2: For the purpose of considering whether a person is a fit and proper person, the Secretary may take into account—
a: any conviction for any offence punishable by imprisonment for 12 months or longer, whether or not—
i: the conviction was in a New Zealand court; or
ii: the offence was committed before the commencement of this Act; and
b: if the person has been previously registered as a broker, whether the person breached a condition of that registration or whether that registration has been cancelled; and
c: if the person has been given a permit under this Act, whether the person has breached a condition of that permit or whether that permit has been cancelled; and
d: the financial position of the person; and
e: whether the application for registration contains information that is false or misleading; and
f: any other information and evidence (including in relation to any associate of the person) that may be relevant.
3: If the person is a body corporate, subsection (2)﻿(a), (b), and (c) must be read as if it refers to the body corporate and its officers.
4: The Secretary may, for the purposes of subsection (2),—
a: seek and receive any information as the Secretary thinks fit; and
b: consider information obtained from any source.
18: Refusal to register broker
If the Secretary refuses to register a person as a broker, the Secretary must give the person written notice of the refusal and the reasons for it.
19: Registration of broker
If the Secretary approves an application for registration, the Secretary must, as soon as practicable,—
a: give the broker written notice specifying the date on which the registration takes effect and the duration of the registration; and
b: enter the following information on the public register:
i: the broker’s full name and trading name:
ii: the date of registration and the date of its expiry:
iii: any other particulars that may be prescribed in regulations.
20: Secretary may impose conditions on registration
1: The Secretary may impose any conditions on a broker’s registration that are consistent with or for the purpose of—
a: the effective administration of this Act:
b: the security, defence, or international relations of New Zealand:
c: New Zealand’s international obligations.
2: The Secretary may impose the conditions when registering the broker or at any other time.
21: Brokers must provide annual report
1: It is a condition of a broker’s registration that the broker must provide an annual report to the Secretary.
2: The annual report must be provided in the prescribed form and manner and contain the prescribed particulars.
22: Duration of registration
1: A broker’s registration is effective from the date of registration until the earliest of the following:
a: the close of the day that is 3 years after the date of registration:
b: the end of the period specified by the Secretary in the written notice under section 19(a)
c: the cancellation or surrender of the registration.
2: A registration may be renewed by paying the prescribed fee (if any) to the Secretary at any time during the period that the registration is effective.
3: On payment of the prescribed fee, the Secretary may renew the registration for a further period determined by the Secretary (not being longer than 3 years) unless the Secretary is no longer satisfied of the matters set out in section 17
23: Cancellation or surrender of registration
1: The Secretary may, by written notice, cancel a broker’s registration if—
a: the Secretary is no longer satisfied of the matters set out in section 17
b: the broker breaches section 10 13 24 39(1)
2: The cancellation of a broker’s registration takes effect on the date specified by the Secretary in the notice, which must be a date after the date of that notice.
3: A broker may surrender the broker’s registration by written notice to the Secretary.
4: The surrender takes effect on the date specified by the broker in the notice, which must be a date after the date of that notice.
5: If a broker’s registration is cancelled or surrendered, any permit held by the broker under subpart 3 Obligation to keep and produce records and answer questions
24: Brokers must keep and produce records and answer questions
1: A broker must keep any prescribed records for a period of at least 7 years after the end of the calendar year to which the records relate.
2: A broker must, when required,—
a: make the records available to the Secretary or a constable:
b: provide copies of the records to the Secretary or a constable:
c: answer any questions in respect of the records that are asked by the Secretary or a constable.
25: Offence to fail to keep or produce records or answer questions
A broker who, without reasonable excuse, fails to comply with section 24
a: in the case of an individual, to a term of imprisonment not exceeding 6 months or a fine not exceeding $10,000, or both:
b: in any other case, to a fine not exceeding $20,000.
3: Permits for brokering activity
26: Application for permit
1: A broker must apply to the Secretary for a permit to carry out a brokering activity.
2: The application may be for 1 or more transactions.
3: The application must be made in accordance with section 38
27: Criteria for permit
1: The Secretary may give a broker a permit to carry out a brokering activity if, having regard to the prescribed criteria and to any other matters that the Secretary considers appropriate, the Secretary is satisfied that the activity—
a: is consistent with New Zealand’s international obligations; and
b: would not prejudice the security, defence, or international relations of New Zealand.
2: The Secretary may, for the purposes of this section,—
a: seek and receive any information as the Secretary thinks fit; and
b: consider information obtained from any source.
28: Refusal to give permit
If the Secretary refuses to give a broker a permit, the Secretary must give the broker notice of the refusal and the reasons for it.
29: Duration of permit
1: A permit must specify the period, not longer than 3 years, for which the permit is effective.
2: The permit ceases to be effective on the earliest of the following:
a: the end of the period specified in the permit:
b: the cancellation or surrender of the permit:
c: the date on which the broker’s registration ceases to be effective.
30: Secretary may impose conditions on permit
1: The Secretary may impose any conditions on a permit that are consistent with or for the purpose of—
a: the effective administration of this Act:
b: the security, defence, or international relations of New Zealand:
c: New Zealand’s international obligations.
2: The Secretary may impose the conditions when giving the permit to the broker or at any other time.
31: Cancellation or surrender of permit
1: The Secretary may, by written notice, cancel a permit given under this subpart if—
a: the Secretary is no longer satisfied of the matters set out in section 27
b: the broker breaches section 10 13 24 39(1)
2: The cancellation takes effect on the date specified by the Secretary in the notice, which must be a date after the date of that notice.
3: A broker may surrender a permit by written notice to the Secretary.
4: The surrender takes effect on the date specified by the broker in the notice, which must be a date after the date of that notice.
4: Civil enforcement
32: Civil enforcement
1: This subpart applies to a person if,—
a: without lawful justification or reasonable excuse, the person has breached section 10 13 24 39(1)
b: there are reasonable grounds to believe that the person is likely to breach section 10 13 24 39(1)
2: The Attorney-General may—
a: issue a formal warning to the person (in any prescribed manner and containing any prescribed information):
b: accept an enforceable undertaking from the person under section 33:
c: seek an order of the court under section 34 against the person for breach of an enforceable undertaking:
d: seek an injunction under section 35 against the person. 2009 No 35 ss 78 79
33: Enforceable undertakings
1: The Attorney-General may accept a written undertaking given by a person in connection with the person’s compliance with section 10 13 24 39(1)
2: The person may withdraw or vary the undertaking at any time, but only with the consent of the Attorney-General. 2009 No 35 s 81
34: Enforcement of undertakings
1: If the Attorney-General considers that a person who gave an undertaking under section 33
2: The court may, if satisfied that a person has breached 1 or more of the terms of an enforceable undertaking, make any or all of the following orders:
a: an order directing the person to comply with any of the terms of the undertaking:
b: an order directing the person to pay to the Crown an amount up to the amount of any financial benefit that the person has obtained directly or indirectly from, and that is reasonably attributable to, the breach:
c: any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach. 2009 No 35 s 82
35: Injunctions
1: The court may grant an injunction restraining a person from breaching section 10 13 24 39(1)
2: The injunction may be an interim one if the court thinks that is desirable, but the court must not—
a: require the Crown to give an undertaking as to damages as a condition of granting the interim injunction; or
b: take into account that the Crown is not required to give an undertaking as to damages.
3: The court may rescind or vary an injunction granted under this section.
4: Subsections (1) and (2) apply whether or not the person—
a: intends to engage again, or to continue to engage, in conduct that breaches section 10 13 24 39(1)
b: has previously engaged in such conduct.
5: The powers in this section do not limit any other powers of the High Court relating to the granting of injunctions. 2007 No 7 s 44 ss 84 87–89
3: Miscellaneous provisions
Extraterritorial application
36: Offences committed outside New Zealand
1: Even if the acts or omissions alleged to constitute an offence against any of sections 12 14 15 25 39
a: if the person to be charged—
i: is a New Zealand citizen; or
ii: is ordinarily resident in New Zealand; or
iii: is an entity incorporated or registered under the law of New Zealand; or
b: if any of the acts or omissions are alleged to have occurred on board—
i: a ship registered, or required to be registered, under the Ship Registration Act 1992
ii: a ship used as a ship of the New Zealand Defence Force; or
iii: an aircraft registered, or required to be registered, in New Zealand under the Civil Aviation Act 1990
iv: an aircraft for the time being used as an aircraft of the New Zealand Defence Force; or
v: an aircraft that is leased to a lessee whose principal place of business is in New Zealand, or who is a New Zealand citizen or a person ordinarily resident in New Zealand.
2: The following sections do not apply in respect of an offence against section 12 14 15 25 39
a: section 8 of the Crimes Act 1961 (which relates to jurisdiction in respect of crimes on ships or aircraft beyond New Zealand):
b: section 400
3: Nothing in this section limits the application of section 12 14 15 25 39
a: acts or omissions that occurred wholly in New Zealand; or
b: the application of section 7
i: an act or omission forming part of an offence; or
ii: an event necessary to the completion of an offence; or
c: the application of section 8A 1961 No 43 s 7A Attorney-General’s consent
37: Attorney-General’s consent required
1: No charging document may be filed against any person in relation to an offence under this Act unless the Attorney-General consents to the filing of the charging document.
2: A person alleged to have committed an offence may be arrested or a warrant for his or her arrest may be issued and executed, and he or she may be remanded in custody or on bail, even though the consent of the Attorney-General has not yet been obtained under subsection (1), but no further or other proceedings may be taken until the consent has been obtained. Applications for registration and permits
38: Applications for registration and permits
1: An application under section 16 26
a: be in the form approved by the Secretary for the purposes of that section; and
b: contain the information required by the form; and
c: be accompanied by any documents that the form requires; and
d: be accompanied by the fee (if any) prescribed by the regulations.
2: The Secretary may request an applicant to provide such additional information as the Secretary considers necessary to enable the Secretary to decide the application.
3: The Secretary may approve a form for the purposes of section 16 26
39: False or misleading information
1: A person must not, in relation to an application for registration or a permit under this Act, supply any information that the person knows or ought to know is materially false or misleading.
2: A person who breaches subsection (1) commits an offence and is liable on conviction,—
a: in the case of an individual, to a term of imprisonment not exceeding 6 months or a fine not exceeding $10,000, or both:
b: in any other case, to a fine not exceeding $20,000. Appeals against decisions about registration and permits
40: Appeals against certain decisions to District Court
1: A person who has applied for registration or been registered under subpart 2
a: to refuse to register the person as a broker:
b: to impose a condition on the person’s registration:
c: to cancel the person's registration.
2: A broker who has applied for a permit or been given a permit under subpart 3
a: to refuse to give the permit:
b: to impose a condition on the permit:
c: to cancel the permit.
3: An appeal under subsection (1) or (2) must be made within 30 days after the decision appealed against is given, or within any further period that the District Court may allow.
4: A decision against which an appeal is lodged continues in force unless the District Court orders otherwise.
5: An appeal under subsection (1) or (2) is by way of rehearing. Regulations and further miscellaneous provisions
41: Regulation-making powers
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for any or all of the following purposes:
a: prescribing fees or charges for applications under sections 16 26
b: prescribing particulars of brokers that must be entered on the public register under section 19(b)
c: prescribing the form of the annual report to be provided under section 21
d: prescribing the records to be kept under section 24
e: prescribing matters to which the Secretary must have regard when considering whether to give a permit under section 27
f: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations made under subsection (1)﻿(a) may—
a: make different provision for different cases on any differential basis:
b: prescribe any of the following:
i: the method by which the fees or charges are to be assessed:
ii: the persons liable to pay the fees or charges:
iii: when the fees or charges must be paid:
iv: circumstances in which the fees or charges may be refunded, remitted, or waived (wholly or partly).
3: Regulations under this section are secondary legislation ( see Part 3 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 41(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
42: Disclosure of information to overseas authority
1: The Secretary may disclose any information held by the Secretary to an overseas authority for the purpose of assisting the authority to carry out its functions related to, or involving,—
a: the regulation or monitoring of brokering activity:
b: the prevention, detection, investigation, prosecution, or punishment of offences that are, or if committed in New Zealand would be, offences under this Act.
2: Information may be disclosed under this section if—
a: the information is disclosed subject to conditions stating—
i: the use that the overseas authority may make of the information; and
ii: either—
A: that the overseas authority must not disclose the information to any other agency, body, or person; or
B: that the overseas authority may disclose the information, or part of it, to a specified agency, body, or person subject to certain conditions; and
b: the Secretary makes and keeps a record of—
i: the information that was disclosed; and
ii: the overseas authority or authorities to which it was disclosed; and
iii: the conditions subject to which it was disclosed.
3: In this section, overseas authority
4: This section does not prevent or limit any disclosure of information that is required or authorised by or under any law, or under any treaty, agreement, or arrangement concluded by the Government of New Zealand.
43: Register of brokers
1: The Secretary must keep and maintain a register of brokers.
2: The Secretary must ensure that the register is available to the public on an Internet site maintained by or on behalf of the Secretary.
3: The register must show in relation to each registered broker—
a: the information described in section 19(b)
b: a statement as to whether the broker’s registration is subject to any conditions.
4: Despite subsection (3)﻿(a), the Secretary may omit or remove any particular prescribed in regulations made under section 19(b)﻿(iii)
a: the person requests the Secretary to do so on the basis that the particular is personal information; and
b: the Secretary considers that the disclosure of the information on the public register would constitute an unreasonable interference with the privacy of any individual.
44: Consequential amendment
2019-06-01 Privacy Act 1993 see section 2(2) Section 44 repealed 1 December 2020 section 217 Privacy Act 2020