How we decide what to investigate and enforce
When deciding what activity to investigate and enforce, we consider:
Our strategic priorities
Our strategic priorities reflect the areas that have the greatest impact on public confidence in the overseas investment regime. We are likely to prioritise cases where we think the investor:
- has acquired a sensitive New Zealand asset without consent, especially if it would be unlikely to have been approved if they had applied, or if they have made a significant gain
- has not delivered a benefit that was an important factor in the decision to grant consent to the investment
- has negligently, intentionally or recklessly broken the rules, or tried to hide their behaviour
- has an asset of particular significance to New Zealand and New Zealanders, such as one that has high cultural, historic, social, or environmental value, or one that represents an important part of the productive economy or of a particular industry or sector.
The seriousness of the conduct
We are more likely to take action if an investor’s conduct is serious. Examples of serious breaches include:
- negligently, intentionally or recklessly breaking the rules as opposed to unintentionally or accidentally
- with knowledge or awareness of the requirements of the Act and Regulations nevertheless acting contrary to them
- efforts to hide misconduct, such as through artificial structures
- providing us with inaccurate or incomplete information
- repeatedly breaching or showing ongoing disregard for the rules (a pattern/history of non-compliance)
- being uncooperative.
Potentially mitigating factors include:
- self-reported conduct/admissions of liability
- first time or one-off behaviour that is unlikely to be repeated
- genuine remorse demonstrated/attempts to comply or rectify non-compliance
- unintentional or accidental conduct, including reliance on incorrect legal advice
- cooperation with the investigation and willingness to comply
The public interest
We consider the public interest when deciding whether to take enforcement action, including:
- the harm or potential for harm arising from the breach including to third parties or the wider New Zealand public
- the opportunity we missed to impose conditions that could create benefits for New Zealanders
- the deterrence or educational value of taking action
- public confidence in the integrity of the overseas investment regime
- the environmental, cultural, social or heritage value of the asset
- whether the transaction is one of national interest, such as an asset that relates to a strategically important business or represents a material part of the productive economy or of a particular sector
- whether the action can be undone or otherwise remedied
- mitigating factors relating to the investment or the investor, including any benefits the investment has provided for New Zealand
- the risk the investor will offend again, including any commitment the investor has made to ensure that other investments will be compliant
- whether it is more appropriate that another enforcement agency takes action
- the likely penalty that might be imposed.
The strength of our case
When considering taking civil or criminal litigation, we also take account of the strength of our case, including:
- the quality of the evidence
- the prosecution guidelines issued by the Solicitor-General and our prosecution policy
- any limitation issues
- any need to clarify the law.