Find out what you need to do if you have already made an investment without getting consent.
We encourage you to come to us willingly, and early, if you discover you have inadvertently broken the Overseas Investment Rules (Rules).
The OIO expects quality investors will apply for consent to acquire sensitive New Zealand assets when needed. But we recognise that sometimes people inadvertently make mistakes.
Under the Rules we can grant consent for an investment retrospectively. Before granting retrospective consent, we can require an applicant to pay an administrative penalty (retrospective consent penalty).
We will give careful and fair consideration to all applications we receive for retrospective consent.
You must pay an application fee of the usual amount.
In addition, you must pay the retrospective consent penalty of up to $20,000. We will review the reasons and nature of your retrospective application to set an appropriate penalty.
The purpose of the power to grant retrospective consent is to accommodate investors who inadvertently fail to comply with the Rules.
However, cases that meet our threshold for taking a civil case or criminal prosecution should be dealt with by the courts rather than by administrative action.
Accordingly, a retrospective consent:
- will not be appropriate if the application does not meet the OIO’s current criteria for granting consent, and
- is unlikely to be appropriate when a person has acquired a sensitive New Zealand asset in a way the OIO believes will likely satisfy its criteria for taking a civil case or criminal prosecution.
Other factors relevant to our decision on whether or not to grant retrospective consent include:
- whether, on the basis of the information then available to us, we believe the investor’s failure to seek consent was inadvertent.
Retrospective consent will not be appropriate where an investor has deliberately, recklessly or negligently broken the Overseas Investment Rules, or has tried to disguise their behaviour
- whether there have been repeated breaches or ongoing disregard for the Rules
- the extent to which the investor has co-operated with us. This includes an assessment of whether the applicant for retrospective consent came to us early and willingly once they realised they needed consent, or late/after we have made the applicant aware
- if the delay in application has meant our ability to impose meaningful conditions on the consent has been lost
- whether we have opened an Investigation into the investor’s acquisition of the sensitive New Zealand asset
- whether the applicant has made any previous retrospective applications for consent and/or been subject to previous enforcement action by us.
A person who applies for retrospective consent to acquire sensitive land (where benefit to New Zealand must be shown) can expect we will look very carefully at all their dealings with the asset right up to the time of the application.
The OIO sets the amount of the retrospective consent penalty. The maximum is currently set at $20,000.
The factors likely to be relevant to our decision about the amount of the retrospective consent penalty include:
- the nature and extent of any financial gain made, or advantage gained, by the investor,
- the factors we have considered in deciding whether to grant retrospective consent. Particularly whether, on the basis of the information then available to it, we believe the investor’s failure to seek consent was inadvertent or negligent,
- the additional time and cost incurred by us in considering the application because of its retrospective nature.
We must ensure that the amount of the penalty imposed is not unduly harsh or oppressive given:
- the value of the consideration for the asset that was acquired under the relevant overseas investment transaction,
- the nature of, and the reasons for, the retrospective consent.