We consider a number of factors to assess what enforcement activity we take.
When we consider whether to investigate and what enforcement action to take, we target issues that present the greatest risk of harm to our purpose.
We make each decision based on the particular circumstances, but matters we are likely to consider include:
- our strategic priorities
- seriousness of the conduct
- the public interest
- the strength of our case.
Together, these factors enable us to decide how to prioritise use of our resources, whether to commence an investigation and what enforcement tools we might use.
We cannot take every case or pursue every breach of the Overseas Investment Rules (Rules). Nor would it be in the public interest for us to do so. We have therefore identified strategic priorities to guide what and how we carry out our enforcement work.
We are most likely to take action where the investor’s conduct is serious and/or public confidence in the Rules is threatened by their actions.
Conduct factors we consider include where:
- an investor has deliberately or recklessly broken the Rules
- an investor has provided us with information that turns out not to be accurate or complete in a material way
- an investor has not applied for consent, particularly where consent is unlikely to have been granted if they had applied or we can no longer set appropriate conditions
- an investor has not provided the benefits they promised when they applied for consent
- there have been repeated breaches or ongoing disregard for the Rules
- the extent to which the investor has co-operated with us.
The seriousness of the investor’s conduct will be an important factor when we decide whether to take criminal rather than civil proceedings.
We consider the public interest when deciding whether to take enforcement action and what enforcement tool is appropriate and proportionate.
In assessing the public interest we are likely to have regard to a number of factors, including:
- the harm or potential for harm arising from the breach
- the opportunity we missed to impose conditions to create benefits for New Zealanders through the investment
- 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. This might include where the investment has provided benefits for New Zealand despite the lack of consent or breach of conditions, the personal circumstances of the investor, the investor’s reliance on legal advice
- the risk the investor will offend again. This may include considering any commitment the investor has made to implementing a compliance policy for other investments
- 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 in light of factors which include:
- the quality of the evidence
- the Prosecution Guidelines issued by the Solicitor General and LINZ’s prosecution policy
- any limitation issues, and
- any need to clarify the law.