White-Collar Crime 2024 Comparisons

Criminal offences are divided into four categories for different levels of seriousness. Category 1 offences (the least serious offences) may only be tried by a Community Magistrate or Justice of the Peace and result in community-based sentences such as community work and fines. Category 2 offences are those with a maximum sentence of two years’ imprisonment or less and may only be tried by a judge alone (not jury). Category 3 offences (for offences with a maximum sentence of more than two years’ imprisonment) and Category 4 offences (very serious offences such as murder, manslaughter, torture and terrorism offences) may be tried by a judge alone or a judge and jury, depending on the election of the defendant. Most white-collar crimes (for example fraud, insider trading, bribery) are Category 3 offences.

Crimes may be either:

• strict liability offences, which are concerned with conduct regardless of intention; or
• mens rea offences, which are concerned with both intention and conduct.

In accordance with general criminal principles, the legal and evidential burdens of proof in white-collar proceedings rest with the prosecuting agency. The standard to which the prosecution must prove all elements of an offence is beyond reasonable doubt. In some limited circumstances (particularly where the defendant seeks to invoke a statutory defence), the burden shifts to the defendant who must prove the defence case on the balance of probabilities.

The Criminal Procedure Act provides that there is no limitation period for Category 4 offences (the most serious kinds of offences). Category 3 offences (the category that most white-collar crimes fall into) have a five-year limitation period or may be filed later with the consent of the solicitor-general. Category 1 and 2 offences have limitation periods ranging from six months to five years. Where limitation periods apply, there is no allowance for discoverability. 

Law Enforcement Agencies

New Zealand law enforcement agencies work closely with international counterparts to identify focal points for regulation and enforcement and to share information in relation to cross-border crimes (pursuant to the Mutual Assistance in Criminal Matters Act 1992) and general trends in criminal conduct. New Zealand has a dedicated Transnational Crime Unit (NZTCU) and information-sharing agreements with various entities to combat cross-border crime.

Legislation

The application of the Crimes Act and any other criminal offences (unless otherwise stated) is generally limited to conduct that occurs or partly occurs within New Zealand and people, companies, or property within New Zealand.  However, clear language demonstrating a legislative intention to create an offence with extraterritorial operation can displace that presumption. 

Extraterritorial provisions are most commonly enacted in legislation that implements international agreements and treaties containing obligations to criminalise certain kinds of actions.

Other examples of transnational offences include bribery offences, anti-money laundering and fraud offences.

Generally, New Zealand law does not provide for a criminal trial or hearing to be held in respect of a defendant who is outside New Zealand (Section 25(e) of the New Zealand Bill of Rights Act 1990). However, natural persons who commit may be extradited to New Zealand to stand trial. New Zealand’s extradition procedures are laid out in the Extradition Act 1999 which governs the extradition of persons to and from New Zealand. Crimes subject to the extradition proceedings are those where the maximum penalty of imprisonment is greater than 12 months (with the result that most white-collar criminal provisions are captured by the Act). The Act does not require a foreign country to have a treaty to request extradition from New Zealand.

Charging Decisions in Relation to Companies and Directors/Senior Managers

Generally, both corporations and natural persons may be liable for the criminal wrongdoing. However, some types of offences – especially violent crimes – only give rise to liability for natural persons rather than corporations.

The prosecution has a wide element of discretion in relation to charging decisions. While the Solicitor-General’s Prosecution Guidelines provide general guidance for prosecution decisions, there is no specific guidance in relation to corporations. Many regulators have also published prosecution guidelines which tend to mimic the Solicitor-General’s Prosecution Guidelines but are adapted to the regulator’s particular circumstances. 

Company directors and office-holders may be prosecuted alongside the company of the same offending. Historically, prosecutors tended to adopt the following approach to charging director.

• Charge the company only but not the director in circumstances where the director was:
1. in a position to influence the conduct (such that they should be expected to meet certain standards in the prevention of misconduct within the parts of the corporation under their management); and
2. failed to take reasonable measures to prevent conduct.
• Charge the company and director in circumstances where the director was:
1. in a position to influence the conduct (such that they should be expected to meet certain standards in the prevention of misconduct within the parts of the corporation under their management);
2. failed to take reasonable measures; and
3. did so intentionally, knowingly or recklessly.

More recently, there has been a shift towards charging directors even where there has not been that element of recklessness or intentional conduct. The rationale behind that is as follows.

• Regulators (and other stakeholders) have higher expectations of corporate conduct and increasingly require accountability for (alleged) wrongdoing.
• This increased focus on accountability has led to more aggressive enforcement strategies aimed at deterring and punishing corporate misconduct.
• The option to charge directors is an important tool in ensuring that those individuals who have a key role in encouraging and overseeing compliant conduct within a corporation are personally responsible for that conduct, and through this option the regulator may improve corporate compliance with the law.

In reality, the motivations for charging directors/office-holders alongside corporations appear to be mixed or inconsistent. 

Charging Decisions for Mergers and Acquisitions

Both the acquirer of a business and the seller may be (and have been held) liable for unlawful/anti-competitive business acquisitions. 

Any criminal liability of the acquirer or seller company travels with the company but cannot be transferred to a new entity.

The Commerce Act provides for pecuniary penalties of NZD10 million or three times the value of the unlawful gain or 10% of annual turnover for a corporation, or seven years’ imprisonment and/or a fine of NZD500,000 for an individual.

The courts take the following general approach to sentencing.

• A starting point for the sentence is adopted, taking into account the seriousness of the offending, the maximum penalty for the offence and relevant case law (including Guideline Judgments which set out guidance for sentences for particular types of offences).
• Adjustments are made to the starting point to reflect the offender’s circumstances such as whether the offender pleaded guilty at an early stage (thereby demonstrating remorse and minimising the use of State resources), reparation to victims, co-operation with the investigation, any history of previous offending and the offender’s financial position.

Maximum sentences of imprisonment for common white-collar crimes are as follows.

• Crimes Act offences:
1. fraud: seven years’ imprisonment;
2. money-laundering: seven years’ imprisonment;
3. bribery of an official: seven years’ imprisonment; and
4. cyber-fraud: seven years’ imprisonment.
• Commerce Act offences:
1. cartel conduct: a fine of NZD10 million or three times the value of the unlawful gain or 10% of annual turnover for a corporation, or seven years’ imprisonment and/or a fine of NZD500,000 for an individual.
• Financial Markets Conduct Act offences:
1. insider trading: a fine of NZD.5 million for corporations, or five years’ imprisonment and/or a fine of NZD500,000.
• Fair Trading Act offences:
1. misleading and deceptive conduct: a fine of NZD600,000 for companies orNZD200,000 for individuals.
• Tax Administration Act offences:
1. tax evasion: five years’ imprisonment and/or a fine of up to NZD50,000 for individuals.
• Financial/trade/customs sanctions:
1. a fine of NZD1 million for a corporation, or seven years’ imprisonment and/or a fine of NZD100,000 for an individual.
• Credit Contracts and Consumer Finance Act 2003 (with all offences carrying maximum penalties of NZD200,000 for an individual and NZD600,000 for a corporation):
1. failure to provide important information in writing in relation to a lending agreement;
2. incorrect interest calculations;
3. unfair or unreasonable terms; and
4. participating in a buy-back scheme.
• Companies Act 1993:
1. serious breach of director’s duty to act in good faith and in best interests of company: five years’ imprisonment and/or a fine of NZD200,000.

Where the maximum penalty only specifies a term of imprisonment, the penalty is converted to a fine for corporations.

Attempted offences carry the same maximum penalty as the complete offence.

Statutory damages are not generally a feature of New Zealand criminal law. However, the Credit Contracts and Consumer Finance Act 2003 does provide for the regulator to seek statutory damages of up to NZD6,000 on behalf of a debtor to a consumer credit contract if the creditor breaches its responsibilities in relation to the contract.

The ability to bring private prosecutions is very restricted in New Zealand. Almost always, prosecutions are brought by State regulators and agencies. 

However:

• the courts have the power to award reparation to victims of crime as part of the sentencing process;
• regulators in some circumstances can initiate civil instead of or in addition to criminal proceedings resulting in a pecuniary penalty (like a fine) if the defendant is found liable; and 
• it is becoming increasingly common for victims or affected parties (liquidators, shareholders) of white-collar crime to bring tandem civil claims alongside the regulator.

The proceedings involving CBL Insurance Limited (CBL) demonstrate all of these approaches. Following repeat failures by CBLI to meet solvency, direction and reporting conditions, CBL was put into liquidation on the application of the Reserve Bank of New Zealand (regulator for the insurance industry) in November 2018. A related entity, CBL Corporation Limited, was liquidated in May 2019.

The Financial Markets Authority (FMA) and Serious Fraud Office (SFO) both launched independent investigations into the conduct of the companies and their directors. 

In December 2019, the SFO filed criminal charges against some of CBL’s former directors and chief financial officer alleging theft by a person in a special relationship, obtaining by deception and false accounting. The defendants were ultimately acquitted after a lengthy High Court trial.

Also in December 2019, the FMA filed two sets of civil proceedings against CBL Corporation Limited, its six former directors and its former chief financial officer alleging breaches of New Zealand’s Financial Markets Conduct Act 2013 (including failures to comply with continuous disclosure obligations, misleading and deceptive conduct and false or misleading documents in an initial public offering). One set of the proceedings against one of the directors settled in March 2024, with the director admitting to seven breaches of the Financial Markets Conduct Act and agreeing to pay a penalty of NZD1.4 million. The penalty was subsequently approved by the court.

Aided by litigation funders, two separate class action proceedings (aided by litigation funders) were filed by shareholders alleging false or misleading statements in IPO documents, breach of continuous disclosure obligations, and misleading and deceptive conduct. The companies’ liquidators also brought claims against the former directors for breaches of their duties. These civil proceedings have settled.

The main authorities for white-collar offences are:

• the New Zealand Police: general law enforcement and prosecution, including in relation to theft, fraud and cybercrimes; recovering proceeds of crimes;
• the Serious Fraud Office: prosecution of serious or complex financial crime including bribery;
• the Commerce Commission: regulation of competition and consumer protection;
• the FMA: regulation of financial services and securities markets;
• the Reserve Bank: regulation of banks, insurers and other deposit-takers;
• the Department of Internal Affairs: regulation of casinos, non-deposit-taking lenders, money changers and any other financial institutions not supervised by the RBNZ or the FMA, as well as designated, non-financial businesses or professions and high-value dealers;
• the Inland Revenue Department: enforcement of tax law; and
• the Takeovers Panel: enforcement of compliance with New Zealand’s Takeovers Code.

The genesis of an initial investigation into a white-collar crime may occur through a defendant’s self-reporting, through informant information, through evidence obtained in the course of another investigation, from an auditor, receiver or liquidator or from another regulator.

Upon receipt of information that a white-collar crime may have been committed, the prosecuting agency has a wide discretion as to whether to open an investigation bearing in mind the regulator’s enforcement priorities, resources, the scale of the potential offending, strategic importance of any case arising from the investigation, harm to consumers and other alternatives to a formal investigation (such as engagement and education).

Each of the white-collar crime regulators (referred to at 2.1 White-Collar Enforcement Authorities) with an interest in white-collar crime has regulatory, investigatory and enforcement/prosecutorial powers pursuant to the relevant act governing that regulator and pursuant to the Search and Surveillance Act 2012.

Prosecutorial powers include the power to require the production of documents or information, including the power to search and enter premises, conduct searches, uplift products and machinery and interview witnesses. Powers of search and seizure and normally required to be carried out pursuant to a warrant unless it is necessary to proceed without delay in order to avoid an offender absconding or loss of evidence.

A less commonly utilised tool is the appointment of statutory managers under the Corporations (Investigation and Management) Act 1989. The process is designed to accommodate complex insolvency situations where a corporation has been operating fraudulently, recklessly or where it has extraordinary problems. A corporation can only be placed into statutory management by the Governor General, on the advice of the Minister of Consumer and Market Affairs, in turn on the recommendation of the FMA. It is for this reason it is very rarely used. A recent example is the Du Val group of property management companies which was placed into statutory management in August 2024.

Internal investigations are generally initiated on a voluntary basis, usually in response to the discovery of a compliance concern, or an investigation by a regulator such as the Commerce Commission. By self-initiating an internal investigation, a corporation can minimise exposure to ongoing or future non-compliance and will be better equipped to deal with any regulatory investigation. Additionally, internal investigations:

• will generally reflect well on the corporation in the case of an application for immunity or leniency (referred to in 4.3 Co-operation, Self-Disclosure and Leniency), or when a regulatory is considering investigating or prosecuting a white-collar crime or at any sentencing hearing; and
• must be considered by the court if a defendant is raising a defence of reasonable mistake under the Credit Contracts and Consumer Finance Act 2003 (see further 4.1 White-Collar Defences).

The New Zealand Police, Serious Fraud Office, FMA, Commerce Commission and other authorities (referred to in 2.1 White-Collar Enforcement Authorities) may initiate prosecutions. Any prosecuting agency has a wide element of discretion in relation to charging decisions, although:

• the Solicitor-General’s Prosecution Guidelines provide general guidance for prosecution decisions, although there is no specific guidance in relation to corporations; and 
• many regulators also have published prosecution guidelines which tend to mimic the Solicitor-General’s Prosecution Guidelines but are adapted to the regulator’s particular circumstances. 

The Solicitor-General’s Prosecution Guidelines provide that, prior to commencing a prosecution, the prosecutor must be satisfied that there is prima facie evidence that a crime has been committed and that prosecuting the crime is in the public interest. Public interest factors include:

• the seriousness of the offence;
• whether the offence is likely to be continued or repeated;
• any previous offending by the offender; and
• whether corruption or organised crime was involved.

The Commerce Commission’s Criminal Prosecution Guidelines:

• confirm the application of the Solicitor-General’s Prosecution Guidelines;
• confirm the Acts under which the Commerce Commission is entitled to prosecute;
• affirm the consumer-protection provisions of the Commerce Act 1986; and
• provide guidance on factors influencing the Commerce Commission’s decision on whether to file criminal charges or alternative enforcement options such as civil proceedings.

Common instances where the Commission may exercise its discretion not to take a criminal prosecution are where the case is not serious or where a lesser enforcement response is appropriate. Conversely, it may be influenced towards bringing a Crimes Act prosecution as opposed to a criminal prosecution under the Fair Trading or Credit Contracts and Consumer Finance Act where a criminal conviction would provide the court with a broader range of penalties or sentencing options or where the conduct is deserving of special condemnation by way of a Crimes Act prosecution.

The FMA’s Prosecution Policy is in similar terms to the Commerce Commission’s Prosecution Guidelines. In determining whether to prosecute in any particular case, the FMA will take into account:

• the main objective of FMA as set out under the Financial Markets Authority Act 2011, ie, to promote and facilitate the development of fair, efficient and transparent financial markets;
• whether civil proceedings or other enforcement action would represent a more appropriate response to the conduct alleged;
• the resources available to FMA and the Crown and the demand of the proposed prosecution on those resources relative to the public interest in the prosecution proceeding; and
• any related charges, proceedings or regulatory actions proposed or likely to be proposed by any other agency in relation to the subject matter.

Deferred prosecutions are not available in New Zealand.

Corporate offending conduct is mostly captured by and prosecuted pursuant to general criminal provisions such as the following.

• Crimes Act offences:
1. fraud;
2. money-laundering;
3. bribery of an official; and
4. cyber-fraud.

• Commerce Act offences:
1. cartel conduct; and
2. contravening information disclosure requirements.

• Financial Markets Conduct Act offences:
1. insider trading.

• Fair Trading Act offences:
1. misleading and deceptive conduct.

• Tax Administration Act offences:
1. tax evasion.

• Financial/trade /customs sanctions.

In addition, the Companies Act 1993 provides for some offences (for which directors may be liable) relating specifically to corporations, for example:

• serious breach of director’s duty to act in good faith and in best interests of company; and
• failure to maintain records.

A bribe is defined under the Crimes Act 1961 as money, valuable consideration, office, or employment, or any benefit, whether direct or indirect.

New Zealand’s highest appeal court ‒ the Supreme Court ‒ has held that a “corrupt” bribe means a gift with a value exceeding what would be considered a normal courtesy.

Everyone who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any judicial officer, Minister of the Crown, member of parliament, law enforcement officer, official (person of position) or foreign public official in respect of any act or omission by them in their capacity in that role will be liable.

Bribery of a public official is criminalised in New Zealand (Part 6, Crimes Act 1961) as follows.

• Judicial corruption (accepting bribes): 14 years’ imprisonment for a judicial officer and seven years’ imprisonment for an official.
• Bribery of a judicial officer: seven years’ imprisonment.
• Corruption and bribery of a Minister of the Crown (government): 14 years’ imprisonment for a minister who accepts a bribe and seven years’ imprisonment for offering a bribe to a minister.
• Corruption and bribery of a member of parliament: seven years’ imprisonment for both members accepting bribes and those who offer bribes to members.
• Corruption and bribery of a law enforcement officer: seven years’ imprisonment for both officers accepting bribes and those who offer bribes to officers.
• Corruption and bribery of an official: seven years’ imprisonment for both officials accepting bribes and those who offer bribes to officials.
• Corrupt use of information (obtained in an official capacity and disclosed for pecuniary gain): seven years’ imprisonment.
• Bribery of a foreign public official (including if the bribery takes place outside New Zealand): seven years’ imprisonment and/or a fine of NZD5 million or three times the pecuniary gain from the bribery. Leave of the Attorney-General is required prior to filing a prosecution for offences relating to the corruption and bribery of foreign officials.

Private sector bribery is criminalised (Secret Commissions Act 1910) as follows.

• Principal offences include:
1. gifts to an agent and accepting gifts by an agent without the consent of the principal;
2. an agent entering into a contract on behalf of a principal without disclosing a personal pecuniary advantage;
3. providing false receipts to an agent;
4. receiving a secret reward for procuring a contract; and
5. aiding and abetting.
• The maximum penalty for all offences is seven years’ imprisonment.
• Leave of the Attorney-General is required prior to filing a prosecution for offences under the Act.

The offence provisions referred to above relating to both public and private sector corruption apply to conduct outside New Zealand.

There is no legal obligation to maintain an anti-bribery compliance programme. However, companies, particularly those with an off-shore presence or who interact with foreign governments, are encouraged to have a an anti-bribery compliance programme.

Insider Trading

The Financial Markets Conduct Act defines someone as an “information insider” if (i) they have material information relating to a company or other entity listed on a licensed market such as NZSX, and (ii) that information is not generally available to the market.

“Material information” is information that a reasonable person would expect to have a material effect on the price of financial products quoted on a licensed market, if the information was generally available to the market.

Offences involving the use of insider information include:

• buying or selling the relevant financial products;
• sharing the inside information with someone else who the insider knows will buy or sell the financial products; and
• encouraging other people to buy, sell, or hold the financial products, even if the insider does not explain why.

Maximum penalties are:

• five years’ imprisonment and/or a fine of NZD500,000 for a natural person; and
• a fine of NZD2.5 million for corporations.

Market Manipulation

In New Zealand, market manipulation:

• encompasses conduct where a person misleads (or attempts to mislead) the market by actions or omissions that give a false appearance of trading activity, supply, demand or the value of financial products;
• involves financial products that are traded on a licensed market (stock exchange), in particular shares, bonds and derivatives; and
• includes inflating or deflating the market price or otherwise affecting the behaviour of the market, such as through false information or rumours, or deceptive trades.

The Financial Markets Conduct Act 2013 includes provisions for two types of market manipulation, namely information-based and transaction-based.

• Information-based manipulation is where a person says something – or otherwise shares information about a financial product – that the person knows (or should reasonably know) contains information that is false or seriously misleading.
• Transaction-based manipulation is where someone does something, or chooses not to do something, through orders or trades in the market, that will (or could) give a false or misleading impression about a financial product, eg, about its popularity, availability, price or value.

Maximum penalties are:

• five years’ imprisonment and/or a fine of NZD500,000 for a natural person; and
• a fine of NZD2.5 million for corporations.

Criminal Banking Law

Rules governing the conduct of banks are set out in a number of different statutes. Criminal offences and enforcement regimes affecting banks are contained in the following Acts.

• The Financial Markets Conduct Act 2013: this Act regulates how financial products are created, promoted and sold, and the ongoing responsibilities of those who offer, deal and trade in them. The Act covers fair dealing, disclosure of offers of financial products, licensing of market services, financial reporting and financial advisers.
• The Credit Contracts and Consumer Finance Act 2003: this Act principally regulates the provision of credit products to consumers. It prescribes a disclosure regime and regulates specific aspects of consumer credit products, such as prohibiting the charging of unreasonable credit fees. It also requires lenders to comply with responsible lending principles in relation to their consumer lending.
• The Fair Trading Act 1986, which prohibits misleading or deceptive conduct in trade.
• The Financial Service Providers (Registration and Dispute Resolution) Act 2008.
• The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (see 3.13 Money Laundering).

Section 141E of the Tax Administration Act provides that tax evasion is an offence. It carries maximum penalties of five years’ imprisonment and/or a fine of up to NZD50,000 for individuals.

Section 22 of the Tax Administration Act requires companies to maintain tax records for seven years. This is an absolute liability offence. Failure to comply with this requirement is an offence with penalties ranging from fines of NZD4,000 for first-time offenders to NZD12,000 for subsequent offending.

Companies also have an obligation to keep company and accounting records (including minutes, resolutions and a share register) under Section 189 of the Companies Act 1993. Minutes, resolutions and financial statements must be maintained for seven years. Failure to keep accounting records may result in a presumption of insolvency and is an offence punishable by fines ranging from NZD5,000 to NZD50,000.

Under the Commerce Act, cartel conduct is punishable with a fine of NZD10 million or three times the value of the unlawful gain or 10% of annual turnover for a corporation or seven years’ imprisonment and/or a fine of NZD500,000 for an individual.

The key statutes relating to consumer criminal law are as follows.

• The Fair Trading Act promotes fair competition and the provision of accurate information relating to products and services. The main offence, misleading and deceptive conduct, attracts a maximum fine of NZD600,000 for companies and NZD200,000 for individuals.
• The Commerce Act 1986 is designed to promote competition in markets for the long-term benefit of consumers in New Zealand. The key offence is cartel conduct (see 3.7 Cartels and Criminal Competition Law).
• The Credit Contracts and Consumer Finance Act 2003 is designed to ensure consumers can make informed choices about lending products and to protect vulnerable consumers from predatory lending practices. The Act criminalises a range of lender-conduct with penalties of fines up to NZD200,000 for individuals or NZD600,000 for companies, including:
1. failure to provide important information in writing in relation to a lending agreement;
2. incorrect interest calculations;
3. unfair or unreasonable terms; and
4. participating in a buy-back scheme.

Cybercrime covers crimes where computers are the target and cyber-enabled crime. 

The general fraud provisions under Section 240 of the Crimes Act 1961 remain relevant to both forms of cybercrime. In addition, Sections 249 to 252 of the Crimes Act specifically address cybercrime, defined as “a criminal act that can only be committed through the use of information and communications technology or the Internet and where the computer or network is the target of the offence”. This definition applies regardless of whether the criminal intent is political, for financial gain, for espionage or for any other reason. Crimes include:

• computer intrusion;
• attacks on a computer system;
• malicious software; and
• ransomware attacks.

The maximum penalty for both fraud and computer fraud is seven years’ imprisonment. 

Sanctions generally prohibit persons and entities in New Zealand, New Zealand citizens living extraterritorially and entities incorporated in New Zealand but operating (at least partially) outside of New Zealand from knowingly transferring, paying for, selling, assigning, disposing any asset, money or security that is owned or controlled by a designated person or held by a specified entity. 

As a UN member state, New Zealand is obliged to implement domestically the resolutions of the UN Security Council (UNSC) in respect of sanctions regimes. Domestic incorporation of UN sanctions is imposed through regulations made under the United Nations Act 1946. 

In addition to implementing UN sanctions, New Zealand has standalone legislation to impose sanctions independent of the UNSC in circumstances where the UNSC is unlikely to act. For example, New Zealand has implemented sanctions in response to military actions by Russia (and others) in Ukraine or any other country.

A fine of NZD1 million for a corporation or seven years’ imprisonment and/or a fine of NZD100,000 for an individual.

Altering, concealing, destroying or reproducing documents with intent to deceive is an offence pursuant to Section 258 of the Crimes Act 1961 carrying a maximum sentence of imprisonment of ten years. This offence is considered to have been committed as soon as the alteration is made or the document is reproduced with the requisite intent, even if the offender did not intend for any particular person to use or act upon the document or absence of the document.

See also 3.6 Financial Record-Keeping for obligations on companies to maintain records and furnish information. Section 378 of the Companies Act 1993 makes it an offence to fraudulently conceal or destroy property of the company ‒ the maximum sentence is imprisonment of ten years or a fine not exceeding NZD200,000. This offence can be committed by directors, employees or shareholders of a company.

The Commerce Act 1986 provides as per Section 103 that it is an offence where a person subject to a request to disclose information does not comply with that notice or furnishes information or documents under that notice it knows to be misleading or fraudulent. In addition to this, it is an offence to refuse to produce any book or document that a person has been required to produce if they are required to appear before the Commerce Commission. Offences under Section 103 have a maximum fine for individuals of NZD100,000 or, in any other case, a maximum fine of NZD300,000.

Offenders can be liable on a party basis (for their role in a joint enterprise) or on a stand-alone basis.

Generally, a person who aids and abets a principal offence is deemed to have carried out the principal offence so the maximum penalty is the same as if the offence had actually been carried out.

Money-Laundering Offences

Money laundering is an offence under Section 243 of the Crimes Act 1961 carrying a maximum sentence of imprisonment of seven years. Money-laundering includes:

• dealing with the proceeds of crime;
• dealing with money or property which is intended to become an instrument of crime; or
• dealing with property reasonably suspected of being proceeds of crime.

Obligations to Prevent Money Laundering

The Anti-Money Laundering and Counter Terrorism Financing Act 2009 (AML/CTF Act) places a positive obligation on reporting entities (broadly, financial institutions or providers of designated services such as law firms and real estate agents) to have a programme in place to identify, mitigate and manage the risks posed to their business by money laundering and terrorism financing, and to notify authorities of suspicious matters. A reckless or intentional failure to have or comply with an adequate programme or with requirements to make confidential reports of suspicious activity is an offence attracting a maximum penalty of two years’ imprisonment and/or a fine of NZD300,000. For negligent failures of AML requirements, the duty-holder may be exposed to civil liability attracting pecuniary penalties of up to NZD200,000 for a natural person and NZD2 million for a company.

The Crimes Act presently contains exclusions for facilitation payments (small, routine payments for the purpose of expediting government processes) and payments that were not at the time an offence in the relevant country (with the defendant having the burden of proving this).

The Credit Contracts and Consumer Finance Act provides that proof of the following (on the balance of probabilities) is a defence:

• the breach was due to a reasonable mistake or due to events outside of the person’s control;
• the breach was remedied (to the extent that it could be remedied) as soon as practicable after the breach was discovered by the person or brought to the person’s notice; and
• the person has compensated or offered to compensate any person who has suffered loss or damage by that breach.

There are no de minimis exceptions for white-collar offences in New Zealand, although if fraud is very minor, it is less likely to meet the public interest test in terms of the Solicitor-General’s Prosecution Guidelines (see 2.5 Prosecution).

Within their wide-ranging prosecutorial discretion, New Zealand regulators may take account of self-reporting and co-operation in making decisions concerning whether to proceed with an investigation or prosecution.

Cartel Leniency and Immunity Policy

The Cartel Leniency and Immunity Policy, published by the Commerce Commission, is a key tool for the Commission to detect cartels. The Policy provides as follows.

• The Commission has an immunity and co-operation policy for cartel conduct which applies to both individuals and corporations.
• The Commission can grant leniency to any individual or company engaged in cartel conduct that meets the requirements set out in the Policy. Leniency means that the Commission agrees not to take civil enforcement action against a company or individual for their involvement in the cartel conduct.
• Where an individual or corporation intends to make an application for immunity, they can request that the Commission place a marker. The marker allows the applicant a limited amount of time to gather the information necessary to demonstrate that they satisfy the requirements for conditional immunity.
• Once a marker has been requested, the individual or corporation must co-operate fully with the Commission in order to obtain conditional immunity including by providing full disclosure of information to the Commission.
• The Commission will then make a recommendation to the Solicitor-General regarding whether it considers immunity from prosecution should be granted.

Under the Protected Disclosures (Protection of Whistleblowers) Act 2022, a worker (including an employee, volunteer, contractor or board member) may report serious wrongdoing (an offence, serious risk to the maintenance of the law, corruption, gross mismanagement or oppressive conduct) in both public and private sector workplaces. The disclosure may be made to either the regulator, through the organisation’s internal channels, or to the board. If the worker’s disclosure is made in good faith, it will be protected. Such protection includes maintaining confidentiality in relation to the informant’s identifying details, unless disclosure of the complainant’s identity is necessary for the effective investigation of the allegation, or to prevent a serious risk to public health or safety or the environment, or to comply with the principles of natural justice.