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Financial Markets Authority Act 2011

General information-gathering and enforcement powers - Miscellaneous provisions relating to powers - Effect of proceedings on exercise of powers

58: Effect of final decision that exercise of powers under section 25 unlawful

You could also call this:

“What happens if a court says the FMA used its powers wrongly”

This law talks about what happens if a court decides that the Financial Markets Authority (FMA) used its powers wrongly under section 25. If the court says the FMA’s actions were not allowed, here’s what needs to happen:

The FMA must immediately destroy any information they got from using those powers wrongly. They also have to destroy any records of that information.

The FMA must return any documents or parts of documents they took to the people who had them before. They must destroy any copies they made of these documents.

The FMA must destroy any information that came from or was based on the wrongly obtained information or documents.

Sometimes, the court might say the FMA can keep some information or documents instead of destroying them. The court will tell the FMA how they can use this information.

If the FMA got information or documents by using their powers wrongly, that information usually can’t be used as evidence in court cases. However, there are some exceptions:

In civil court cases, a judge might allow the evidence if they think it’s fair to use it.

In criminal court cases, the evidence can’t be used if it’s not allowed under section 30 of the Evidence Act 2006.

The FMA also can’t use this information for any other part of their job unless a court says it’s fair to use it.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3637802.

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"What happens when you challenge the FMA's powers in court"

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Part 3 General information-gathering and enforcement powers
Miscellaneous provisions relating to powers: Effect of proceedings on exercise of powers

58Effect of final decision that exercise of powers under section 25 unlawful

  1. This section applies in any case where it is declared, in a final decision given in any proceedings in respect of the exercise of any powers conferred by section 25, that the exercise of any powers conferred by that section is unlawful.

  2. If this section applies, to the extent to which the exercise of those powers is declared unlawful, the FMA must ensure that, immediately after the decision of the court is given,—

  3. any information obtained as a consequence of the exercise of powers declared to be unlawful and any record of that information are destroyed; and
    1. any documents, or extracts from documents, obtained as a consequence of the exercise of powers declared to be unlawful are returned to the person previously having possession of them, or previously having them under his or her control, and any copies of those documents or extracts are destroyed; and
      1. any information derived from or based on such information, documents, or extracts is destroyed.

        1. However, the court may, in the court’s discretion, order that any information, record, or copy of any document or extract from a document may, instead of being destroyed, be retained by the FMA subject to any terms and conditions that the court imposes.

        2. No information, and no documents or extracts from documents, obtained as a consequence of the exercise of any powers declared to be unlawful, and no record of any such information or document,—

        3. are admissible as evidence in any civil proceedings unless the court hearing the proceedings in which the evidence is sought to be adduced is satisfied that there was no unfairness in obtaining the evidence:
          1. are admissible as evidence in any criminal proceedings if the evidence is excluded under section 30 of the Evidence Act 2006:
            1. may otherwise be used in connection with the exercise of any power conferred by this Act or any provision of the financial markets legislation unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence.