Watching Brief - June 2020 - Russell McVeagh

Matter of Opinion

When you walk through a storm

COVID-19 is unprecedented in our lifetime and the policy, regulatory, and legislative response has had to be similarly so. The Government's legislative programme was necessarily dropped, allowing for policy development and the introduction of Bills at pace. Sir Geoffrey Palmer has applauded the public policy response, pronouncing that it demonstrates that "Government works", with reference to rational policy based on good analysis and backed by science.

While using urgency to process legislation has been rightly criticised over the years, the current crisis is precisely the situation where urgency is appropriate. But this comes with additional responsibility and the Government must take extra care to minimise the circumvention of usual legislative processes as far as possible. So, has the Government demonstrated that it "works" in this regard?

Overall, efforts have clearly been made to ensure a level of checks and balances on law-making powers are maintained over the pandemic period. The establishment of the Epidemic Response Committee, chaired by the Opposition, evidenced a genuine attempt to ensure that the Government remained accountable to Parliament in some form. It is also notable that Select Committees considered a range of Bills otherwise progressing under urgency. While there were limited timeframes for submissions and reporting back, this is still an improvement on removing this step altogether – an approach available to Government where urgency is accorded to a Bill. The Government has also taken steps to build in fuller Select Committee review at a later stage: for example, the truncated Select Committee process for the recently passed Overseas Amendment Urgent Measures Act will be followed by the Select Committee review of the Overseas Amendment Bill (No 3). Through that subsequent review process, the Select Committee is expected to scrutinise the urgent measures more closely.

There are, however, some concerning exceptions. Questions around the legality of the Alert Level 3 and 4 lockdown have been well traversed by commentators in the media, and the Government eventually passed urgent legislation to provide the legal framework for the country's return to Alert Level 2. Public opinion indicates the Government has been afforded some leeway due to the exceptional circumstances and the ultimate public good the lockdown has achieved. However, the question of legality might have been managed better by the swift introduction of bespoke law (similar to the approach in other jurisdictions) in preference to reliance on existing legislation that was not quite fit for purpose – particularly at a time when public confidence in Government and clarity in legal rights was critical. Parliament will need to revisit these issues in calmer times.

More egregious is the use of urgency to introduce the Forests (Regulation of Log Traders and Forestry Advisers) Amendment Bill under the guise of the COVID-19 response, without any clear relationship to the impacts of the pandemic. The policy intent of the Bill is to introduce a registration/licensing regime for forestry advisers and log traders. The Bill was introduced under urgency in mid-May, before policy work was complete, without formal consultation with the industry, and with most of the content left to regulations and rules (contravening the Legislative Advisory Committee Guidelines). While it has been referred to a Select Committee, only four days were allowed for submissions and the Regulatory Impact Assessment was made public two days before submissions closed. Exacerbating concerns about the Bill, there have been the mixed messages on the policy intent, with the Minister of Forestry suggesting it will be used for purposes that go well beyond a registration/licensing regime.

This Bill is an outlier in the otherwise considered approach adopted by the Government and, unfortunately, takes away from Sir Geoffrey Palmer's reasonable proposition that the pandemic has demonstrated that Government works and that policy has been backed by good analysis. Prioritising a non-urgent and undeveloped Bill at this time has negative impacts beyond the forestry industry, as it undermines New Zealand's reputation as a predictable regulatory environment at a time when investor confidence will be critical to the economic recovery process.

In the news

5 June 2020 – a day to remember Lecretia Seales

Lecretia Seales went to the High Court in 2015 to seek a ruling that would allow a doctor to assist her to die with her consent. Russell McVeagh were honored to have represented her in those proceedings which now stand as an important chapter in New Zealand's legal history. For those of us who were involved, it was one of our proudest but saddest times as lawyers at the firm.

5 June 2020 marks the five year anniversary of Lecretia's death, which came shortly after the decision in her case. Lecretia was an intensely private person but took these proceedings because of her strong belief that change was required for people like her that faced the prospect of unbearable suffering at the end of life as a result of terminal illness. She was clear she did not want to die, that choice had been taken from her by aggressive brain cancer, but she wanted to have the choice of a good death. Lecretia was committed to law reform as a means of ensuring our legal framework reflected the expectations and needs of society. She hoped that, should her proceedings not succeed, the process would instigate debate and a law reform process. And it did - her court case initiated a national debate, helped focus a parliamentary inquiry into assisted dying and ultimately led to the introduction and passing of the End of Life Choice Act which goes to a referendum at the upcoming election. Lecretia would be chuffed and pleased to know that she provides ongoing inspiration to many, including young lawyers and future law reformers.

Public consultation opens on Auckland Council's Emergency Budget

On 29 May 2020, Auckland Council agreed to adopt the Consultation Document for its Emergency Budget 2020/2021, with public feedback open until 19 June 2020.

The Emergency Budget responds to the impact of the COVID-19 pandemic on Auckland Council's finances. The Council estimates that in the coming financial year, operating cash income will be around $525 million less than what was initially budgeted. Mayor Phil Goff said "The hit to Auckland Council's revenues by COVID-19 is more than half a billion dollars – the highest faced by any council, and the highest in the city's history".

The proposed Emergency Budget reduces spending and defers certain infrastructure projects. However, the Council has "…sought to keep as much investment as possible in building the infrastructure the city needs to improve transport, the environment and for housing" said Mayor Phil Goff.

The key question considered in the consultation is whether Auckland Council should increase average general rates by 3.5% (as previously agreed), or whether a smaller increase of 2.5% should be adopted. The latter option would mean further cuts in spending, including $50 million less in community assets and in transport projects to improve road safety.

Additional proposals in the Emergency Budget include a COVID-19 rates postponement scheme, which allows ratepayers that are financially strained as a result of COVID-19 to defer their rate payments for the 2020/2021 year (up to $20,000), as well as a suspension of the Accommodation Provider Targeted Rate.

Auckland Council expects to make emergency budget decisions by 16 July 2020, and formally adopt the budget on 30 July 2020.

The Emergency Budget 2020/2021 consultation document is available here.

Review of CAA organisational culture released

On 21 May 2020, Transport Minister Phil Twyford released the Ministry of Transport's Independent Review into the Organisational Culture of the Civil Aviation Authority (CAA) (available here). Minister Twyford commissioned the Review in the wake of mounting concerns about the culture of the CAA – in particular, the inappropriate handling of bullying and harassments complaints.

The Ministry of Transport led the Review, and appointed barrister Rachael Schmidt-McCleave and the RDC Group to provide independent support. The Terms of Reference for the Review are available here. The Review focused on three key areas:

conducting a workplace culture assessment;
considering how complaints of bullying and harassment had been handled; and
ensuring there are policies and procedures to promote staff wellbeing and a culture of 'speaking out'.

The overall finding of the Review is that the culture (both past and present) of the CAA does not operate to support a safe and respectful workplace, and in certain areas, it is below the minimum standards required for health, safety and wellbeing. At its core, the Review found that inappropriate behaviours were able to occur because of the inability of leadership to understand how to build an appropriate culture, including an inability to adequately identify and address issues such as bullying and sexual harassment.

The Review made a number of recommendations in the areas of leadership and management (including reporting), keeping staff engaged and safe (including health and wellbeing), as well as policies, procedures and guidelines. The CAA Board has accepted the Review's findings and is committed to adopting all recommendations (see here).

Minister Twyford stated that, "A healthy culture is vital if the Authority is to keep kiwis safe in the skies and help reshape our aviation sector for the post-pandemic world". His press release can be found here.

Proposed amendments to the NZBORA

The New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill (Bill) passed through its first reading on 27 May 2020, and was referred to the Privileges Committee. The Bill is designed to strengthen the New Zealand Bill of Rights Act (NZBORA) by requiring Parliament to take action if a court says a statute undermines the rights enshrined in the NZBORA.

Presently, if a court issues a declaration of inconsistency with the NZBORA, the declaration will not affect the validity of the Act. It is simply a signal that the court considers an Act to infringe fundamental human rights in a way that cannot be justified in a free and democratic society. There is no legal mechanism to hold Parliament to account. Under the Bill, if a senior court makes a declaration of inconsistency with the NZBORA, the Attorney-General will be required to draw this declaration to the attention of the House of Representatives within six sitting days of the declaration becoming final. Parliament will then have the opportunity to consider whether it wishes to repeal, amend, or affirm the provision in question.

The process the Bill envisages is similar to the requirement in section 7 of the NZBORA, in which the Attorney-General must bring to Parliament's attention any inconsistencies between proposed legislation and the provisions of the NZBORA. Standing Orders then require these inconsistencies to be referred to select committee for consideration. The Bill would implement a similar automatic process when senior courts make such a declaration.

The Human Rights Act 1993 will also be amended so the response to a declaration of inconsistency by the Human Rights Review Tribunal is the same as the response to a declaration under the NZBORA.

Remuneration reduction for top public officials

On 15 April 2020, Cabinet agreed that all Government ministers would take a 20% pay cut. This required amendments to the Remuneration Authority Act 1977 (Act), to allow the Authority to make a temporary determination for certain public officials to take a reduction in pay of up to 20% for six months. The Government's FAQs assert that the amendment legislation is not about austerity and savings, but about leaders in the public sector demonstrating pay restraint at a time when many New Zealanders in the private sector are losing their jobs or facing pay cuts.

This was enabled by the Remuneration Authority (COVID-19 measures) Amendment Act, which came into force on 16 May 2020, amending the original Act by inserting section 19A. Temporary reductions can only be made to remuneration payable to officer holders listed in schedule 4A of the Remuneration Authority Act 1977. This includes MPs, elected members of local government and other high-ranking public officials.

The explanatory note to the Bill stated that its purpose was to allow public sector leaders during the COVID-19 outbreak to show leadership in the public sector and solidarity with the private sector.

No temporary reduction determination can be made after 30 June 2020 and any reduction made must expire no later than six months after it comes into force. The maximum reduction is also limited to no more than 20% of a person's remuneration. A temporary reduction is yet to be publicly confirmed. The press release, including a link to the FAQs, is available here.

Once in a generation budget

On 14 May 2020, the Minister of Finance, Hon Grant Robertson, unveiled the 2020 "wellbeing" budget ("Budget"), which establishes $50 billion of additional spending for the Government's response to COVID-19.

This $50 billion is in addition to the $12.1 billion already spent on the initial COVID-19 Economic Response Package announced on 17 March 2020, meaning the Government has made available funding of up to $62.1 billion in the COVID-19 response and recovery. However, only $15.9 billion is being immediately allocated in the Budget to spending programmes, leaving $20.2 billion to be put aside for future investment. Minister Robertson stated in his Budget speech, "this is the most significant financial commitment by a New Zealand government in modern history. The fund does not represent a target for spending, but gives us the flexibility to be able to respond as necessary."

The Treasury has acknowledged the high level of uncertainty that presented significant challenges when forecasting its economic, tax and fiscal outlook. Some of the assumptions that underlined its economic forecasts (which were finalised on 17 April 2020) are already outdated, such as Alert Level 3 restrictions being in place for a month. As Minister Robertson pointed out, "economic forecasting is more of an art than a science at the best of times, but more so than ever now."

That said, the Treasury has forecast unemployment to peak at 9.8% in September 2020 and recover thereafter. With that in mind, the Budget has a heavy focus on the workforce and supporting employment and to that end it allocates:

$3.2 billion for an eight-week extension of the wage subsidy scheme (albeit with a more restricted eligibility criteria);
$3 billion boost to infrastructure spending expected to stimulate the sector and create jobs;
$1.6 billion for trades and apprenticeships training; and
$1.1 billion for jobs in environmental projects.

While almost unanimously accepted that the economy is in need of a massive stimulus, concerns have been raised over the debt blowout and the Government's ability to finance it going forward. Net core Crown debt is forecast by the Treasury to rise from around 20% currently to a peak of 53.3% of GDP by the 2023 fiscal year. Adding to the concerns is the fact that, with the Official Cash Rate at record low levels, the Reserve Bank is not in a strong position to provide further stimulus through its monetary policy.

More information on the Budget can be found on the Treasury's website here.

Reset of the Provincial Growth Fund

Minister for Regional Economic Development, Hon Shane Jones, recently announced that the Government has repurposed funds from the Provincial Growth Fund (PGF) and the Regional Investment Opportunities Contingency to support regional growth in the wake of the COVID-19 pandemic.

The refocused PGF has three objectives that drive decision-making – the creation of jobs, reduction in delivery timelines, and promoting visibility in the regions.

The Government announced the first of the new projects to be funded, specifically:

$100 million for waterway fencing, riparian planting and stock water reticulation to incentivise farmers to fence off sensitive waterways from stock;
$60 million for local road and rail investments; and
$70 million for upgrades of marae, town halls, Pasifika churches and war memorials in order to provide work for local tradesmen while regular building works and repair is on hold.

The press release also announced a further $7.5 million of PGF-funding for another four projects:

$2.9 million to Apollo Foods Ltd for new technology and to upskill workers to increase productivity and capability;
$2.5 million for an upgrade to Raglan Wharf to increase berth numbers and improve access for commercial operators, recreational users, and visiting customers;
$1.86 million to redevelop the Westport waterfront, including the addition of a pedestrian bridge to allow trail-related businesses closer access to the town centre; and
$209,500 for Te Pari Products to buy equipment that will increase its capacity to supply the primary sector with livestock-handling equipment.

The Minister's press release is available here.

Report on the gun buyback scheme

The Office of the Auditor General has completed its report of the firearms buyback and amnesty scheme. The scheme was implemented in response to the Christchurch terror attack that took the lives of 51 worshippers and injured around 45 others. In September 2019, the Auditor-General announced it would report back to Parliament after it had examined how well the scheme was implemented, given the significant public interest.

It is unknown how many prohibited firearms existed before the buyback. Police estimates, scrutinised by NZ Institute of Economic Research (NZIER), suggested it could range between 55,000 and 240,000 firearms. As at February 2020, 61,332 prohibited firearms had been collected and destroyed, or modified by police-approved gunsmiths to comply with the new requirements. In addition to the assault rifles and military-style semi-automatic firearms that were destroyed under the buyback scheme, Police have seized more than 2,400 unlawful firearms from gangs and other offenders since March 2019. Compensation of $102 million was paid to gun owners, with the final cost forecast to be $120 million. The cost to administer the scheme, initially estimated at $18 million, was greater than anticipated, growing to $35 million.

The report found that the buyback scheme was complex, challenging, and high risk – particularly given deficiencies in how information had previously been recorded for military style semi-automatics, or E-category firearms. Police are said to have managed the scheme effectively and communicated well with the public. The scheme was supported by good systems and processes, with a robust level of oversight and that compensation payments did not exceed what was appropriate.

However, the report noted that ongoing work is needed to ensure that prohibited weapons are kept out of the wrong hands and firearms ownership is restricted to responsible licensed people. The report recommends Police continue to build relationships with firearms owners and dealers, improve the information they use to keep on top of gun regulations, and create a framework to show how the new regulations have made New Zealand safer.

Update on the Christchurch Call

On 15 May 2019, Prime Minister Jacinda Ardern and French President, Emmanuel Macron brought together Heads of State and Government and leaders from the tech centre to adopt the Christchurch Call. The Christchurch Call (Call) is a pledge that seeks to eliminate terrorist and violent extremist content online to stop the internet being used as a tool for terrorists.

The Government has provided its update one year on from the commitment:

The Call has the support of 48 countries, the European Commission, two international organisations, and eight tech companies.
An Advisory Network of civil society members is designed to ensure ongoing work strikes the right balance between protecting out populations from online harm, while still guarding the freedom of expression, and our belief in a free, open, and secure internet.
There is now the means to coordinate across governments and tech companies to respond to attempts to use the internet as a terrorist weapon.
Tech companies have reformed the Global Internet Forum to Counter Terrorism into an independent organisation, with a 24/7 crisis management function, an enhanced governance structure, and an Independent Advisory Committee, scheduled for launch in mid-2020.
A crisis response protocol has been adopted and was used in October 2019 and February 2020.

In delivering the update, the Prime Minister noted that if a similar attack occurred again, the international network of governments and tech companies is "ready to mobilise and work against the forces that boosted the viral spread of content from Christchurch". The Prime Minister and President Macron also released a joint statement reaffirming their commitment to the Call.

Press releases are available here and here, and a link to the website dedicated to the Call can be viewed here.

Drought Recovery Fund

The Government has announced a new fund intended to help the primary sector prepare their businesses to recover from droughts. The fund will be managed by the Ministry of Primary Industries (MPI). The $500,000 fund will provide advisory services (of up to $5,000 excl. GST per applicant) to equip rural businesses with technical and professional advice. The types of advisory services available will include strategic planning and development of farm business plans, practical advice on land management and sustainable management techniques, and technical advice on soil and pastures.

Applicants must meet three criteria to be eligible for the fund:

The farm must be located in a relevant drought affected area, being anywhere in the North Island, Chatham Islands, or the top of the South Island.
The farming business must have been negatively affected by the 2020 drought.
At least 50% of the farmer's income, in a normal year, must be earned from the farming business.

In announcing the fund, Hon Damien O'Connor highlighted one of the unusual consequences of the drought that has already started to be noticed by consumers – that being the paler colour of our butter.

Applications must be made by 12 June 2020, and successful applicants will be informed by 22 June 2020. Farmers will be able to choose a supplier from a pre-approved list prepared by MPI. The new fund is in addition to $17 million invested by the Government to help drought stricken regions recover from the current drought.

More information is available on MPI's webpage here.

Changes to tobacco legislation

In mid-May, Parliament passed the Customs and Excise (Tobacco) Amendment Act 2020, which tightens border controls for the purposes of reducing revenue evasion, increases Customs' visibility on imports and closes off import channels used by smugglers.

Loopholes in the earlier law presented difficulties for Customs when dealing with illicit cigarette and loose leaf tobacco consignments imported for sale on the black market. Since 2015, Customs has seen a 352% increase in interceptions of smuggled cigarettes, with the unpaid excise tax on seized illicit tobacco products being almost $11 million in 2019 alone. In such cases, Customs was required to prove that the importation of tobacco sent via international mail and freight was for the purpose of evading excise tax.

Under the new law, from 1 July 2020, persons importing tobacco products will require a permit from the New Zealand Customs Service. The new permit system will help Customs deal with cases of smuggling faster, by enabling it to take action where permits have not been obtained.

The law was debated under urgency, which drew some criticism on the basis that the Bill does not play a role in the COVID-19 recovery or create jobs for the hard-hit New Zealand economy. Minister of Customs Hon Jenny Salesa identified the involvement of organised crime, money laundering, and the circumvention of smoke-free controls as factors that justified urgency.

The new law will not affect duty free allowances for travellers, which will continue to be subject to existing rules.

The Minister's press release is available here.

Speeches of note

Rt Hon Jacinda Ardern, and Hon Grant Robertson deliver Budget 2020 speeches

On 14 May 2020, both the Prime Minister, and the Finance Minister, presented their budget speeches for 2020. Budget 2020 was declared to be delivered in the shadow of a 1-in-100 year threat to the wellbeing of people, communities and the economy. The "once in a generation" budget is about keeping existing jobs, and creating new ones.

The Finance Minister was confident about the strength of New Zealand's fiscal position, and real GDP growth prior to the COVID-19 pandemic. Net core Crown debt was below 20% of GDP, compared to the UK at 75%, the USE at 90% and Ireland at 40%. However, New Zealand's real GDP growth rate is forecast to decline, and unemployment is forecast to increase significantly, to 8.3% in the year ending June 2020, before peaking at 9.8% in September 2020. The Finance Minister went on to summarise the budget allocations to key sectors of our public infrastructure.

In light of this economic outlook, the Prime Minister also referred to the Budget as a response to the rainy day that has been planned for, and requested the support of the Opposition to shelter and protect New Zealand to weather the storm, rather than argue about who gets to hold the umbrella. In providing further context on the "jobs" Budget, the Prime Minister referred to a skills shortage, and the number of people that need to be trained or retrained, this being a time to focus on jobs, on training, and on education.

The Finance Minister's budget speech can be found here, and the Prime Minister's here.

Progress of Legislation

Bills introduced

Appropriation (2019/20 Supplementary Estimates) Bill

Type of Bill: Government

Member in Charge: Hon Grant Robertson

This Bill seeks parliamentary authorisation of the individual appropriations and changes to individual appropriations contained in The Supplementary Estimates of Appropriations for the Government of New Zealand for the Year Ending 30 June 2020. The individual appropriations and changes are summarised in Schedules 1 and 2 of the Bill.

Appropriation (2020/21 Estimates) Bill

Type of Bill: Government

Member in Charge: Hon Grant Robertson

This Bill seeks parliamentary authorisation of the individual appropriations contained in The Estimates of Appropriations for the Government of New Zealand for the Year Ending 30 June 2021 presented to the House of Representatives as part of the 2020 Budget documentation.

Building (Building Products and Methods, Modular Components, and Other Matters) Amendment Bill

Type of Bill: Government

Member in Charge: Hon Jenny Salesa

This Bill seeks to amend the Building Act 2004, by introducing a number of reforms:

Provision of a statutory definition relating to "building product" and "building method", and expanding the purpose of the Building Act 2004. There will also be amendments/clarifications to the responsibilities/roles of those in the supply chain, such as importers, manufacturers and suppliers of building products, as well as designers and builders.
The existing product certification scheme will face additions to meet new best practice requirements. These additions will be in relation to building products, installation and consenting, as well as additional requirements to the scheme relating to manufacturer certification and registration.
The Bill features an amendment from six to 12 months in which to file a charge, and introduces a number of new fines and offences.
Creation of a specialist framework for modular components relating to modern methods of construction, linked to the Government's goal of improving housing supply and affordability. This framework will include certification requirements for modular component manufacturers and requirements to meet under the Building Code. MBIE will have the power to make rules relating to this scheme.
Movement from printed public notifications in the Gazette newspaper, to an online forum.

COVID-19 Public Health Response Bill

Type of Bill: Government

Member in Charge: Hon David Parker

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

COVID-19 Response (Further Management Measures) Legislation Bill

Type of Bill: Government

Member in Charge: Hon Chris Hipkins

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

COVID-19 Response (Taxation and Other Regulatory Urgent Measures) Bill

Type of Bill: Government

Member in Charge: Hon Stuart Nash

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

Customs and Excise (Tobacco) Amendment Bill

Type of Bill: Government

Member in Charge: Hon Jenny Salesa

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

Family Court (Supporting Families in Court) Legislation Bill

Type of Bill: Government

Member in Charge: Hon Andrew Little

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill

Type of Bill: Government

Member in Charge: Hon Tracey Martin

The Bill would provide additional regulatory tools to manage harms caused by content that is livestreamed or hosted by online content hosts. The Bill mostly relates to online publications, however, one aspect of the Bill (urgent interim classification assessments) will apply to all publications covered by the Act. Key changes include:

livestreaming of objectionable content would become a criminal offence;
enabling the Chief Censor to make swift time-limited interim classification assessments of any publication in situations where the sudden appearance and (in the case of online publications) viral distribution of objectionable content is injurious to the public good;
authorising an Inspector of Publications to issue a take-down notice for objectionable online content. The take-down powers are aligned with current powers of seizure of objectionable publications;
a civil pecuniary penalty will be imposed on online content hosts that do not comply with an issued take-down notice;
safe harbour provisions in Harmful Digital Communications Act 2015 will not apply to objectionable online content; and
facilitating the establishment of a government-backed (either mandatory or voluntary) web filter if one is desired in the future.

Food (Continuation of Dietary Supplements Regulations) Amendment Bill

Type of Bill: Government

Member in Charge: Hon Damien O'Connor

This Bill will extend the expiry date of the Dietary Supplements Regulations 1985 by five years, from 1 March 2021, to 1 March 2026. This Bill achieves its objective by amending the sections of the Food Act 2014, which implement an expiry date for the Regulations.

Forests (Regulation of Log Traders and Forestry Advisers) Amendment Bill

Type of Bill: Government

Member in Charge: Hon Shane Jones

This Bill seeks to establish a compulsory registration system for log traders, forestry advisers and other regulated parties. The requirements relate to meeting a fit and proper test, operating in accordance with practice standards and meeting record-keeping and reporting requirements. Forestry advisers will face additional requirements of adherence to a code of ethics, and meeting other requirements set out in regulations, such as skills, education and professional development requirements. The Ministry of Primary Industries is to act as the authority responsible for the registration and administration of this system.

Immigration (COVID-19 Response) Amendment Bill

Type of Bill: Government

Member in Charge: Hon Iain Lees-Galloway

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

Overseas Investment Amendment Bill (No 3)

Type of Bill: Government

Member in Charge: Hon David Parker

This Bill amends the Overseas Investment Act 2005. The Bill is 1 of 2 that are being introduced to replace the Overseas Investment Amendment Bill (No 2). The Bill contains those measures originally in the No 2 Bill, which the Government considers do not need to be enacted urgently to mitigate the effects of COVID-19.

The Bill alters the Act in the following ways:

Increasing the threshold for "overseas persons" (as defined by the Overseas Investment Act) to acquire farm land.
Adding factors relating to Māori cultural values, including by taking into account plans to protect or enhance wāhi tūpuna, wāhi tapu areas, and Māori reservations.
Introducing that investors must disclose information relating to their proposed investment structure and tax treatment to the Inland Revenue Department.
The Bill also removes screening requirements relating to "lower-risk" transactions, such as less sensitive land that adjoins sensitive land, transactions which involve New Zealand entities, and leases or other interests of less than 10 years.
The screening process for transactions still awaiting approval will be altered. This alteration relates to whether an investment in sensitive land will benefit New Zealand, including by simplifying and clarifying the counterfactual assessment, and removing the requirement for a full screening process for those overseas persons who have already been screened and improved.

Overseas Investment (Urgent Measures) Amendment Bill

Type of Bill: Government

Member in Charge: Hon David Parker

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

Remuneration Authority (COVID-19 Measures) Amendment Bill.

Type of Bill: Government

Member in Charge: Hon Chris Hipkins

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

Social Security (COVID-19 Income Relief Payment to be Income) Amendment Bill

Type of Bill: Government

Member in Charge: Hon Carmel Sepuloni

This Bill has received Royal Assent. See 'Acts Assented' below for a summary of the resulting legislation.

Bills awaiting first reading

Appropriation (2019/20 Supplementary Estimates) Bill
Arms (Firearms Prohibition Orders) Amendment Bill (No 2)
Autonomous Sanctions Bill
Crimes (Coward Punch Causing Death) Amendment Bill
Education (Strengthening Second Language Learning in Primary and Intermediate Schools) Amendment Bill
Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill
High-power Laser Pointer Offences and Penalties Bill
Insurance (Prompt Settlement of Claims for Uninhabitable Residential Property) Bill
Moriori Claims Settlement Bill
New Zealand Superannuation and Retirement Income (Fair Residency) Amendment Bill
Oranga Tamariki (Youth Justice Demerit Points) Amendment Bill
Rights for Victims of Insane Offenders BillShark Cage Diving (Permitting and Safety) Bill

Bills defeated

N/A

Bills withdrawn

Overseas Investment Amendment Bill (No 2)

Bills before Select Committee

Submissions open

Bill	Select Committee	Closing date for Submissions
Building (Building Products and Methods, Modular Components, and Other Matters) Amendment Bill	Environment Committee	TBA
Child Support Amendment Bill	Social Services and Community Committee	24 Jun 2020
COVID-19 Public Health Response Act 2020[Note: this Act was passed under urgency and is undergoing an inquiry into its operation]	Finance and Expenditure Committee	28 Jun 2020
Food (Continuation of Dietary Supplements Regulations) Amendment Bill	Primary Production Committee	TBA
Gas (Information Disclosure and Penalties) Amendment Bill	Economic Development, Science and Innovation Committee	TBA
New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill	Privileges Committee	TBA
Overseas Investment Amendment Bill (No 3)	Finance and Expenditure Committee	31 Aug 2020
Veterans' Support Amendment Bill (No 2)	Social Services and Community Committee	16 Jun 2020

SUBMISSIONS CLOSED
Bill	Select Committee	Report due
Ahuriri Hapū Claims Settlement Bill	Māori Affairs Committee	12 Sep 2020
Crimes (Definition of Female Genital Mutilation) Amendment Bill	Health Committee	04 Aug 2020
Education and Training Bill	Education and Workforce Committee	08 Jun 2020
Fair Trading Amendment Bill	Economic Development, Science and Innovation Committee	12 Aug 2020
Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Bill	Governance and Administration Committee	08 Jun 2020
Financial Market Infrastructures Bill	Finance and Expenditure Committee	12 Aug 2020
Financial Markets (Conduct of Institutions) Amendment Bill	Finance and Expenditure Committee	12 Aug 2020
Forests (Regulation of Log Traders and Forestry Advisers) Amendment Bill	Environment Committee	05 Jun 2020
Greater Christchurch Regeneration Amendment Bill	Governance and Administration Committee	05 Jun 2020
Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2)	Education and Workforce Committee	20 Jul 2020
Infrastructure Funding and Financing Bill	Transport and Infrastructure Committee	25 Jun 2020
Land Transport (NZTA) Legislation Amendment Bill	Transport and Infrastructure Committee	08 Jun 2020
Local Government (Rating of Whenua Māori) Amendment Bill	Māori Affairs Committee	03 Aug 2020
New Zealand Public Health and Disability Amendment Bill	Health Committee	19 Aug 2020
Organic Products Bill	Primary Production Committee	19 Sep 2020
Protection for First Responders and Prison Officers Bill	Justice Committee	17 Jun 2020
Public Service Legislation Bill	Governance and Administration Committee	08 Jun 2020
Racing Industry Bill	Transport and Infrastructure Committee	08 Jun 2020
Regulatory Systems (Transport) Amendment Bill	Transport and Infrastructure Committee	19 Sep 2020
Residential Tenancies Amendment Bill	Social Services and Community Committee	13 Jul 2020
Screen Industry Workers Bill	Education and Workforce Committee	06 Aug 2020
Secondary Legislation Bill	Regulations Review Committee	17 Jun 2020
Sexual Violence Legislation Bill	Justice Committee	15 Jun 2020
Taumata Arowai - the Water Services Regulator Bill	Health Committee	17 Jun 2020
Urban Development Bill	Environment Committee	10 Jun 2020

Bills awaiting second reading

Appropriation (2020/21 Estimates) Bill
Asia-Pacific Economic Cooperation (APEC 2021) Bill as reported back from select committee
Births, Deaths, Marriages, and Relationships Registration Bill as reported back from select committee
Climate Change Response (Emissions Trading Reform) Amendment Bill, as reported back from select committee
Dairy Industry Restructuring Amendment Bill (No 3) as reported back from select committee
Electoral (Registration of Sentenced Prisoners) Amendment Bill, as reported back from select committee
Equal Pay Amendment Bill as reported back from select committee
Health (Fluoridation of Drinking Water) Amendment Bill as reported back from select committee
Health (National Cervical Screening Programme) Amendment Bill as reported back from select committee
International Crimes and International Criminal Court Amendment Bill, as reported back from select committee
Kermadec Ocean Sanctuary Bill as reported back from select committee
Land Transport (Rail) Legislation Bill, as reported back from select committee
New Zealand Superannuation and Veteran’s Pension Legislation Amendment Bill as reported back from select committee
Ngāti Hinerangi Claims Settlement Bill as reported back from select committee
Ngāi Te Rangi and Ngā Pōtiki Claims Settlement Bill as reported back from select committee
Public Finance (Wellbeing) Amendment Bill as reported back from select committee
Rates Rebate (Statutory Declarations) Amendment Bill as reported back from select committee
Sale and Supply of Alcohol (Renewal of Licences) Amendment Bill (No 2) as reported back from select committee
Smokefree Environments and Regulated Products (Vaping) Amendment Bill, as reported back from select committee
Support Workers (Pay Equity) Settlements Amendment Bill as reported back from select committee
Resource Management Amendment Bill, as reported back from select committee
Tauranga Moana Iwi Collective Redress and Ngā Hapū o Ngāti Ranginui Claims Settlement Bill as reported back from select committee
Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Bill, as reported back from select committee
Thames–Coromandel District Council and Hauraki District Council Mangrove Management Bill as reported back from select committee

Bills awaiting third reading

Auckland Regional Amenities Funding Amendment Bill
Arms Legislation Bill
Mental Health and Wellbeing Commission Bill
New Zealand Māori Arts and Crafts Institute Vesting Bill
Privacy Bill

Bills awaiting Royal assent

Overseas Investment (Urgent Measures) Amendment Bill
Social Security (COVID-19 Income Relief Payment to be Income) Amendment Bill

Acts assented

Appropriation (2018/19 Confirmation and Validation) Act 2020

This Act confirms the Public Finance (Transfers Between Outputs) Order 2019, confirms certain unappropriated expenditure, and validates certain unappropriated expenditure.

COVID-19 Public Health Response Act 2020

This Act provides a legal framework for responding to COVID-19 over the next two years or until COVID-19 is sooner brought under control. Key elements include:

Following the declaration of a state of emergency, the issuing of an epidemic notice, or an authorisation that the Prime Minister or the Minster of Health is given powers to issue orders to give effect to the public health response. This is a change to the position under the Health Act 1956, which made the Director-General of Health (exercising the powers of a medical officer of health) the decision maker for orders.
Power to make orders under the Act that:
- are broadly based on the powers in sections 70 and 92I of the Health Act 1956;
- can be expressly exercised in respect of classes of people, businesses, and other activities (such as sporting events, weddings, funerals, etc), and may apply nationally or to a specified area;
- allow for the same kind of measures to be put in place that have been imposed under the various Health Act 1956 orders to date and that are envisaged under the COVID-19 Alert Level Framework; and
- contains the ability to place conditions on the controls made under the orders.
A number of safeguards around the exercise of the Minister’s power to issue orders. Before issuing an order, the Minister must have regard to advice from the Director-General of Health. The Minister may also have regard to any government decision on the risks. The Minister must consult the Prime Minister and the Minister of Justice, and may consult any other Minister that the Minister of Health thinks fit.
Orders are also disallowable instruments and will be automatically revoked if not confirmed by the House of Representatives.
Non-compliance with orders provided for in the Bill may result in imprisonment or a fine on conviction, as with orders made under the Health Act 1956.
The Police are given a power to enter premises, including private dwellinghouses, without a warrant if they have reasonable grounds to believe that people have gathered there in contravention of an order and entry is necessary for the purpose of giving people a direction to comply with the order (for example, giving an order to disperse). Enforcement officers can enter without a warrant any premises other than private dwellinghouses if they have reasonable grounds to believe that a person is failing to comply with any aspect of an order.

This Act was passed under urgency and did not go to Select Committee. In response to concerns raised by legal academics, an Inquiry into the operation of the Act is going to the Finance and Expenditure Committee. The final closing date for submissions is Sunday, 28 June 2020.

COVID-19 Response (Further Management Measures) Legislation Act 2020

This Act amends or alters the application of 45 pieces of legislation with an aim to help businesses stay solvent and keep New Zealanders employed. There are two tiers of amendments, divided between those of a significant or minor nature. Key measures include:

The creation of a business debt hibernation scheme to allow companies and other business entities to place existing debts on hold for up to seven months, if at least half of the businesses creditors agree with the businesses proposition.
'Safe harbour' provisions to provide some relief from sections 135 and 136 (reckless trading) of the Companies Act 1996 where directors have acted in good faith. These provisions apply only to companies incorporated before April 3;
Provisions to aid compliance by granting a range of entities relief from a range of obligations imposed via statute or constitution:
- An entity may modify some provisions in its rules if a majority of the governing officers believe in good faith that it is not reasonably practical to comply with those provisions due to the COVID 19 pandemic. These provisions include procedural or administrative processes, calling or holding meetings, keeping of new records, method or form of dispute resolution. The Act also expressly outlines some provisions that may not be modified.
- Registrars and Ministers may grant exemptions from certain statutory obligations such as calling or holding meetings and auditing, assurance, or financial reporting or review requirements.
- Deferring new regulatory requirements that would increase burdens or where the Government or businesses may no longer be ready to start by the planned date.
Extending the notice period and the period lessees must be in arrears before landlords can cancel commercial leases and extend the notice period before mortgagees can exercise certain rights under the mortgage, such as the right to sell or repossess the property.
Changes to parental leave in order to allow works entitled to parental leave to temporarily return to work to assist with the response to COVID-19 without being disadvantaged.
Changes to local government by-election timing;
Changes to the Gambling Act 2003 to allow certain charities to operate lotteries online and by phone. Because of the effects that the outbreak of COVID-19 is likely to have on face-to-face sales.
Changes to the Commerce Act 1986 to allow the Commerce Commission to authorise conduct that may technically breach the restrictions on cartel conduct, but would be of such a benefit to the public that it should be permitted.

COVID-19 Response (Requirements for Entities—Modifications and Exemptions) Act 2020

This Act was formerly part 2 of the COVID-19 Response (Further Management Measures) Legislation Bill. It was divided into a separate Bill at the committee of the whole house stage. The Act provides processes for an entity affected by COVID-19 to in some circumstances use electronic means for doing things if its constitution or rules would otherwise prevent this and to temporarily modify certain requirements or restrictions in its constitution or rules if it is not reasonably practicable to comply with them.

COVID-19 Response (Taxation and Other Regulatory Urgent Measures) Act 2020

This Act is an omnibus Act aimed at assisting the Government's response to the effects of the COVID-19 outbreak through tax and other regulatory measures. This Act amends the following legislation:

Income Tax Act 2007
Tax Administration Act 1994
Child Support Act 1991
Animal Welfare Amendment (No 2) Act 2015
Public Finance Act 1989
Crown Entities Act 2004
State Owned Enterprises Act 1986
Credit Contracts Legislation Amendment Act 2019

This Act makes a number of changes to the tax system by:

implementing a temporary tax loss carry-back measure, which allows businesses that anticipate a loss in either the 2019-20, or 2020-21 tax year to carry some or all of that loss to the preceding (profitable) year;
providing a temporary discretionary power to the Commissioner of Inland Revenue to respond to procedural or administrative concerns and, where appropriate, modify due dates, deadlines, time periods, or timeframes for taxpayers affected by COVID-19;
authorising the Commissioner of Inland Revenue to lend money on behalf of the Crown under the Small Business Cashflow (Loan) Scheme (and providing that the conversion of a portion of a loan to a grant will not have adverse tax implications for the applicant); and
ensuring payments made under the COVID-19 New Zealanders Stranded Overseas Support (NZSOS) Programme are subject to the same tax treatment as their standard counterparts, and that there is no change in student loan obligations and entitlement to working for families tax credits (as well as ensuring that NZSOS payments are appropriately considered for child support purposes under the Child Support Act).

This Act also makes a number of non-tax changes by:

deferring the commencement of amendments to the Animal Welfare Act, which alter the rules about who may carry out different types of surgical procedures on animals;
altering the commencement of provisions of the Credit Contracts Legislation Amendment Act, including bringing forward the limit on the accumulation of interest and fees, as well as a prohibition on compound interest, and a cap on default fees (alongside a number of technical and other provisions), while delaying broader reforms which would require significant system changes by lenders; and
extending the timeframe for certain departments, Crown entities, and state-owned enterprises to provide documents to their responsible or shareholding Ministers.

Customs and Excise (Tobacco) Amendment Act 2020

The Customs and Excise (Tobacco) Amendment Act 2020 comes into force on 1 July 2020. It amends the Customs and Excise Act 2018. The Act makes tobacco leaf, products and refuse prohibited imports. Tobacco is defined to include cigarettes, pipe tobacco and hand rolling tobacco but not cigars, cigarillos, chewing tobacco, water pipe tobacco, snuff or snus. To import a person must have a permit or the importation must fit within one of the limited exceptions, such as duty free purchases at international airports or where the tobacco is only transiting through New Zealand to another destination.

The Act also introduces a simplified seizure and condemnation process for tobacco and tobacco products. Goods are immediately condemned to the Crown when seized. Customs must then as soon as is reasonably practical notify in writing any person with an interest in the goods. If tobacco or tobacco products are incorrectly disposed of, the importer may apply for compensation.

Family Court (Supporting Families in Court) Legislation Act 2020

The Family Court (Supporting Families in Court) Legislation Act 2020 amends the Care of Children Act 2004 and the Legal Services Act 2011. The Act comes into force on 1 July 2020. The effect of these amendments is to allow parties involved in on notice applications to the Family Court to have access to legal representation and (if eligible) legal aid. Currently lawyers can only be involved in without-notice applications. This is a reversal of changes made as part of the 2014 family justice system reforms.

Immigration (COVID-19 Response) Amendment Act 2020

This Act amends the Immigration Act in response to the large numbers of migrants who are unable to leave New Zealand, or are unable to return to New Zealand, due to COVID-19. The powers contained in the Act are time-limited and will be available for 12 months. Some of the eight time-limited powers include the ability to:

impose, vary or cancel conditions of temporary entry class visa holders;
grant visas in the absence of applications;
waive regulatory and other requirements.

Overseas Investment (Urgent Measures) Amendment Act 2020

This Act is a response to the Government's concern that productive firms and strategically important assets are vulnerable to acquisition by overseas investors at "fire sale prices" because of the impacts of the COVID-19 pandemic. At the same time, the Government wants to ensure that the application of the Act does not unnecessarily jeopardise the viability of distressed businesses that need quick access to finance. The Act:

introduces a national interest test that will allow the Government to deny consent where a transaction is deemed not to be in the national interest. Uniquely, for this test the onus is on the Government to prove that the investment is not in New Zealand's national interest;
introduces an 'emergency notification regime.' This requires that investors notify the overseas investment office of transactions that results in more than a 25% ownership interest, or that increases an existing interest to or beyond 50%, 75% or 100%. This will allow the Overseas Investment office to undertake the national interest test. This power is only intended to be used whilst the country is facing the impact of COVID-19 and will be reviewed every 90 days;
grants the Government the power to determine whether certain investments in strategically important businesses give rise or are likely to give rise to a significant risk to New Zealand's national security or public order; and
removes the requirement of consent for a number of low-risk transactions, including purchases by a fundamentally New Zealand entity, small changes in shareholding and two further classes of lending and portfolio management transactions.

Remuneration Authority (COVID-19 Measures) Amendment Act 2020

This Act will, for a short period, permit the Remuneration Authority to reduce the remuneration for certain roles within certain limits. The Act overrides the current legislative regime by permitting a capped reduction of up to 20% of current remuneration for up to a six-month period which must commence on or before 30 July 2020. This change will be repealed on 31 January 2021.

Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Act 2020

This Act amends the Smoke-free Environments Act 1990 to prohibit smoking in motor vehicles carrying children and young people under 18 years of age. The Act creates a new infringement offence and associated fine. It gives Police constables the power to stop vehicles in which there appeared to be a smoking person and a child, and to require any suspected smoker or child to provide their personal details. While the Select Committee recommended the then Bill be passed without amendment, in the third reading the Bill was amended to respond to concerns raised by the public that the exemption permitting adults smoking in a vehicle with a child if the vehicle is stationary and used as a dwelling was too broad. The then Bill was amended and will now only exempt motor vehicles that have been manufactured for use on occasion as a permanent dwelling, for example, caravans or motorhomes, while they are stationary on a road and used as a dwelling. The Act comes into force on 28 November 2021.

Social Security (COVID-19 Income Relief Payment to be Income) Amendment Act 2020

The Act amends the Social Security Act 2018 by ensuring that a payment received by a person under the COVID-19 Incomes Relief Payment Programme ("Programme") is treated as the person's income. This allows the Ministry of Social Development to treat the payment received under the Programme as income when assessing a person's entitlement to further support. The then Bill was passed under urgency and did not go through Select Committee. Payments under the Programme will provide temporary income relief to people who have lost their jobs as a result of the impact of COVID-19. The Programme will come into force on 8 June 2020 and will be available for eligible people who have lost their jobs on or after 1 March 2020 and no later than 30 October 2020. People will be able to apply until 13 November 2020. The amendment will automatically be repealed once the COVID-19 Income Relief Payment Programme is revoked.

In the week ahead

What’s going on in the House

Parliament resumed sitting on 28 April. Although this marked the start of a scheduled three-week sitting block, the House did not follow its normal meeting schedules, as MPs were required to stay at home where possible. Under Alert Level 3, only 33 MPs were permitted to be seated in the Chamber at any one time (to allow social distancing). Half of the MPs were permitted to be in the House when the Budget was delivered at Alert Level 2 – others were video conferencing in, or watching from the public gallery.

The House agreed to disestablish the Epidemic Response Committee on 26 May.

The budget debate continued this week, with progress made on the second readings of the Climate Change Response (Emissions Trading Reform) Amendment Bill, the Resource Management Amendment Bill, and the Public Finance (Wellbeing) Amendment Bill.

Select committees are fully operational at Alert Level 2. However, there have been changes to how meetings are held.

Social distancing is practised when committees meet in person.
Some select committees are meeting remotely using video-conferencing or teleconferencing.
Submitters and witnesses are able to provide evidence via videoconference or teleconference.
The public is not permitted to attend Parliament in person but can watch proceedings online.

Watching Brief - June 2020