Overseas Investment Act 2005

Consent and conditions regime - Information-gathering powers

41C: Effect of final decision that exercise of powers under sections 38 to 41 unlawful

You could also call this:

"What happens if a court decides the Overseas Investment Act was used unfairly"

If a court decides that the Overseas Investment Act's powers, as stated in sections 38 to 41, were used unfairly, this section applies. You need to know that the regulator must then destroy any information they got because of this unfair use of power. The regulator must also return any documents they took to the person who had them before, and destroy any copies.

The court can say that instead of destroying the information, the regulator can keep it, but only if the court says so and under certain conditions. If the court does decide the powers were used unfairly, the regulator cannot use the information they got in most cases.

You should be aware that there are some exceptions, for example, if the court thinks it was fair to get the information, they might let it be used as evidence in a civil case. In a criminal case, the information can only be used if it is not excluded under section 30 of the Evidence Act 2006.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS111999.


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"What happens when someone takes you to court about using a special power under the law"


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41D: Confidentiality of information and documents, or

"Keeping your information private when you share it with the regulator"

Part 2Consent and conditions regime
Information-gathering powers

41CEffect of final decision that exercise of powers under sections 38 to 41 unlawful

  1. This section applies in any case where it is declared, in a final decision given in any proceeding in respect of the exercise of any powers conferred by any of sections 38 to 41, that the exercise of any powers conferred by any of those sections is unlawful.

  2. If this section applies, to the extent to which the exercise of those powers is declared unlawful, the regulator 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, that are obtained as a consequence of the exercise of powers declared to be unlawful are returned to the person who previously had possession or control of them, 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 order that any information, record, or copy of any document or extract from a document may, instead of being destroyed, be retained by the regulator 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 proceeding unless the court hearing the proceeding 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 proceeding 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 powers conferred by this Act unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence.
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              Notes
              • Section 41C: inserted, on , by section 35 of the Overseas Investment Amendment Act 2018 (2018 No 25).