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 deals with preliminary matters including, without limitation, interpretation and the application of this Act; and
(b)
subpart 1 of Part 2 deals with general matters relating to the criminal proceeds and instruments forfeiture regime; and
(c)
subpart 2 of Part 2 deals with the restraint of property that may later become the subject of a forfeiture order; and
(d)
subpart 3 of Part 2 deals with civil forfeiture orders (which are assets forfeiture orders and profit forfeiture orders); and
(e)
subpart 4 of Part 2 deals with certain procedural matters associated with conviction-based instrument forfeiture orders; and
(f)
subpart 5 of Part 2 sets out the powers of the Official Assignee; and
(g)
subpart 6 of Part 2 sets out the powers of the police; and
(h)
subpart 7 of Part 2 provides for investigative powers for various agencies; and
(i)
subpart 8 of Part 2 deals with foreign restraining orders and foreign forfeiture orders; and
(j)
subpart 9 of Part 2 deals with certain miscellaneous matters; and
(k)
subpart 10 of Part 2 sets out consequential amendments.
(3)
This overview is by way of explanation only. If any provision of this Act conflicts with this overview, the other provision prevails.
In this Act, unless the context otherwise requires,—
all or part of a respondent’s property means all or part of the property in which an identifiable respondent has an interest
assets forfeiture order means an order made under section 50(1)
benefit includes proceeds and property
civil forfeiture order means an assets forfeiture order or a profit forfeiture order
Commissioner means the Commissioner of Police
convert means, in relation to property, to change it from one form to another, whether by sale or by some other means (for example, selling a car and buying a boat with the proceeds of the sale)
dealing with, in relation to property,—
(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 has the same meaning as in section 2(1) of the State Sector Act 1988
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 means either a person within the meaning of financial institution as defined in section 3 of the Financial Transactions Reporting Act 1996 or as defined in section 5 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009
foreign country has the same meaning as in section 2(1) of the Mutual Assistance in Criminal Matters Act 1992
foreign forfeiture order has the same meaning as in section 2(1) of the Mutual Assistance in Criminal Matters Act 1992
foreign order means a foreign forfeiture order or a foreign restraining order
foreign qualifying forfeiture offence has the same meaning as in section 2(1) of the Mutual Assistance in Criminal Matters Act 1992
foreign restrained property means property that is the subject of a foreign restraining order
foreign restraining order has the same meaning as in section 2(1) of the Mutual Assistance in Criminal Matters Act 1992
forfeited property means property that is the subject of a forfeiture order
forfeiture order means an assets forfeiture order, a profit forfeiture order, or an instrument forfeiture order
former interest holder means, in relation to a forfeiture order, any person whose interest in property has been forfeited by the order
instrument forfeiture order means an order made under section 142N of the Sentencing Act 2002
instrument of crime means—
(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) or (2A) of the Terrorism Suppression Act 2002, includes funds (as defined in section 4(1) of that Act) allocated for the purposes of committing that offence; and
(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, excluding any severable interest or granting relief
interest, in relation to property of any kind (including, without limitation, restrained property or forfeited property), means—
(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 means an order applied for under section 128
lawyer means a barrister or solicitor, as those terms are defined in section 2 of the Law Practitioners Act 1982
Official Assignee means the Official Assignee of New Zealand
organisation means an organisation listed in Part 2 of Schedule 1 of the Ombudsmen Act 1975
profit forfeiture order means an order made under 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 means property in relation to which a restraining order is sought
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 laid the information in the proceedings; and
(iii)
in the case of a private prosecution, the person who laid the information and any counsel representing that person
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, in relation to an application for a profit forfeiture order, means the period that ends on the date the application is made and starts 7 years before—
(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 means,—
(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 means property that is the subject of a restraining order
restraining order means an order made under section 24, 25, or 26
significant criminal activity has the meaning given to it in section 6
significant foreign criminal activity has the same meaning as in section 2(1) of the Mutual Assistance in Criminal Matters Act 1992
specific property means identifiable property in relation to which there may, but need not, be a person who is an identifiable owner
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 has the meaning given to it in section 7.
(2)
A reference in this Act to benefits, proceeds, or property being derived by a person (person A) includes benefits, proceeds, or property derived—
(a)
directly or indirectly by person A; and
(b)
by another person at the request or direction of person A.
Section 5(1) financial institution: substituted, on 17 October 2009, by section 161(2) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (2009 No 35).
6-
Meaning of significant criminal activity
(1)
In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—
(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 if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
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.
Part 2
Criminal proceeds and instruments forfeiture regime
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 and, in relation to an appeal from an instrument forfeiture order, the Summary Proceedings Act 1957 or the Crimes Act 1961, as the case requires.
Compare: Criminal Assets Recovery Act 1990 s 5 (NSW)
