Can breaches of health and safety laws lead to business assets being seized? The Criminal Proceeds (Recovery) Act 2009 establishes a regime for the forfeiture of property that has been derived from significant criminal activity. It aims to eliminates the chance for people to profit from being associated with criminal activity – as well as deter it.
The cases that usually fall under this regime are drugs related crimes. The Commissioner of Police traces whether cars, homes, boats and other assets have been purchased with drug money and therefore should be seized. It has proven to be successful. As at July 2019 there was NZ$45 million sitting in the Proceeds of Crime Fund.
So how does this tie in with health and safety?
This year for the first time since the law was enacted, the Commissioner of Police is bringing proceedings against a man convicted under the Health and Safety in Employment Act 1992 (New Zealand’s former health and safety legislation). The man, Mr Salter was convicted in 2017 for a number of charges in relation to the death of a worker when fumes ignited on his worksite. Mr Salter was sentenced at the time to home detention for a period of four and a half months, a fine of $25,000 as well as reparation jointly with Salters Cartage (his business) of $128,074.21.
Police have now sought to restraint orders for more than $8 million of Mr Salter’s personal and business assets.
So why hasn’t this tool been used in this context before? The difficulty for the Commissioner in this case will be proving that the property has been derived directly or indirectly from significant criminal activity. Presumably this will require the Commissioner to show that Mr Salter’s assets (wholly or in part) were acquired as a result of (or directly/indirectly derived from) Mr Salter’s health and safety breaches. The Crown has 12 months to consider whether it would seek to seize any assets under forfeiture orders. The investigation has not concluded. We will keep you updated.