How we decide what to investigate and enforce
When deciding what activity to investigate and enforce, we consider:
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 deliberately 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
- has created public harm indicating that they are not fit to hold the asset, such as breaching environmental or animal welfare laws.
At the moment there are some additional considerations we are taking into account because of the ongoing impacts of the COVID-19 pandemic.
We are more likely to take action if an investor’s conduct is serious. Examples of serious breaches include:
- deliberately or recklessly breaking the rules
- providing us with inaccurate or incomplete information
- not applying for consent
- not delivering the proposed benefits from the investment
- repeatedly breaching or showing ongoing disregard for the rules
- being uncooperative.
We consider the public interest when deciding whether to take enforcement action, including:
- the harm or potential for harm arising from the breach
- 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 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 personal circumstances of the investor, and the investor’s reliance on legal advice
- 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.
When considering enforcement action, particularly when we are 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.