Crossing the Alps: The Application Of The Criminal Proceeds (Recovery) Act 2009 To Regulatory Offending

• Author: Angus Graham
• Position: Senior Investigating Lawyer at the Serious Fraud Office, focusing on the investigation and prosecution of serious or complex fraud, including bribery and corruption
• Pages: 203-230

Crossing the Alp s: The Application o f the Criminal Proceed s (Recovery) Act 2009

to Regulatory O ending

203

CROSSING THE ALPS: THE APPLICATION

OF THE CRIMINAL PROCEEDS (RECOVERY)

ACT 2009 TO REGULATORY OFFENDING





e Criminal Proceeds (Recovery) Act 2009 is a powerful piece of legislation. It

provides the Co mmissioner of Police with the a bility to strip individua ls of their wealth

and assets by proving, on the balance of probabilities, that some unlawful benefit was

obtained from significant criminal activity. e Commissioner of Police has successfully

implemented this legislation in the context of organised crime and sophisticated organised

criminal groups. Recently, the Commissioner has sought to apply this legislation to

regulatory oences committed by businesses. is represents a significant expansion of

the original scope of this legislation and presents New Zealand business with the risk

of having their assets and profits seized, restrained, and forfeited by the State. is

paper addresses the framework of the Criminal Proceeds (Recovery) Act 2009 and how

the Commissioner has sought to expand the application of this framework to regulatory

oending. is p aper shall address the jeopa rdy such an expansion represents a nd what

can be done to miti gate such a draconian appl ication of the Act.

I. Introduction

The Criminal Proceeds (Recovery) Act 2009 (CPRA) provides the

Commissioner of Police (the Commissioner) with a mechanism for confiscating

“tainted” assets and “dirty” profit. The purpose of this legislation has been

articulated by the Honourable Kiri Allan, the then Minister of Justice, as:

* Angus Gra ham is a Senior Invest igating Lawyer at t he Serious Fraud Oce, focusing on the

investi gation and prosecut ion of serious or complex frau d, including brib ery and corruptio n.

Prior to work ing at the Ser ious Fraud Oc e, Angus was a Ju nior Barr ister for Mr Ron M ansfield

KC, whose prac tice specialis es in serious high pro file crimina l defence. Angus complete d his

studies at V ictoria Universi ty of Wellington in 2 019, graduating w ith a Bachelor of Laws wi th

Honours. Wh ilst working for Mr Mansfield KC he complet ed his Master of Laws by way of a

thesis on cy bercrime, a lso from Vict oria Universit y of Wellingt on.

204[Vol 30, 2023]

“This is about ensuri ng crime doesn’t pay and that there

are major con sequences for crimin al and gang act ivity”.1

Rt Hon Chris topher Hipkins, t he then Prime Min ister, also confi rmed:2

The steps ta ken today continue the Government’s multi-

faceted approach to tackling harm caused by gangs and

other organ ised crimina l groups. This is the next s tep in the

Government’s work to c urb crime and m ake our commun ities

safer. It will mean that not only do we have more frontline

Police than ever before, they also have greater powers to

hit gangs where it hurts. This goes hand in hand with the

Government’s work w ithin commu nities to stop you ng people

becoming i nvolved in crime and g angs in the fir st place.

The purpose of t he CPRA appe ars clear. It is a t ool to be used by t he Commis sioner,

as part of a wider arsenal, to combat organised crime and organised criminal

groups. It is a piece of legislation that can be used to directly attack the profits of

sophisticated criminal activity. However, on closer examination, this forfeiture

regime pres ents complex and perplexi ng issues for practit ioners.

This article will examine how the Commissioner has ventured into new

“regulatory” areas of criminal activity, namely the areas of environmental,

resource ma nagement, work hea lth and safet y and anti-money la undering / count er

terrorism financing (AML/CFT) regulation. The following article shall discuss

why the Commissioner’s audacious steps into the area of regulatory oending

is considered controversial and even dangerous. In particular, this article will

consider the application of the CPR A in the context of the Commissioner of Police v

Salter proceeding.3

1 New Zealand Parliament “Police given new powers to seize criminal assets” (New Zealand

Parlia ment, 5Septemb er 2022) <www.be ehive.govt .nz>.

2 New Zeala nd Parlia ment, above n 1.

3 Commis sioner of Police v S alter CIV-2019 -404-2622.