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

• Date: 01 January 2023

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 P roceeds (Recove ry) Act 2009 is a power ful piece of legis lation. It

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

and assets by pr oving, on the bal ance of probabili ties, that some u nlawful benefit w as

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

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

criminal gr oups. Recently, the C ommissione r has sought to apply t his legislatio n to

regulatory oe nces committ ed by business es. is represent s a significant expa nsion of

the original s cope of this legis lation and prese nts New Zealand busin ess with the risk

of having their a ssets and profits s eized, restrai ned, and forfeite d by the State. is

paper addresse s the framework of th e Criminal Pro ceeds (Recover y) 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 Crimi nal Pro ceeds (Recover y) Act 2009 (CPR A) provides the

Commission er of Police (the Comm issioner) with a me chanis m for confiscati ng

“tai nted” asset s and “dirt y” profit. The pu rpose of th is legislat ion has been

artic ulated by th e Honourable Ki ri Alla n, the then M inist er of Justice, as:

* Angus Gra ham is a Senior Invest igating Lawyer at t he Serious Fraud Oce, foc using on th e

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 Ma nsfield KC he complet ed his Master of Laws by w ay of a

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

204 [Vol 30, 2023]

“This is a bout ensuri ng crime doesn’t pay and th at 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 Govern ment’s multi-

faceted approa ch to tackl ing har m caused by ga ngs 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 wil l mean that not on ly do we have more front line

Police tha n ever before, they a lso have great er powers to

hit gang s where it hurt s. This goes ha nd in hand w ith 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 w ider arsena l, to combat org anised cr ime and org anised cr imina l

groups. It is a piece of le gislation t hat can be u sed to direc tly att ack the profits of

sophistic ated crim inal ac tivity. However, on closer exa minat ion, this for feiture

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

This ar ticle wil l exami ne how the Commi ssioner has ventu red into new

“regulat ory” are as of crimi nal act ivity, namel y the areas of env ironment al,

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

terrori sm financi ng (AML /CFT) regulat ion. The followi ng artic le shall d iscuss

why the Comm issioner’s audacious st eps into the a rea of regul atory oendi ng

is considered cont roversial a nd even dangerou s. In part icular, t his art icle will

consider the appl ication of the CPR A in the context of the Commissioner of Police v

Salter proceeding.3

1 New Zealand Pa rliament “ Police given ne w powers to seiz e crimi nal asset s” (New Zeal and

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.