Matter of opinion
Through a Looking Glass, Darkly
New Zealand's rules for political donations – why targeted changes for 2023 should be welcomed
How political parties and candidates are funded, and the rules that apply, are essential to any functioning democracy. Even suspicion of improper influence can greatly reduce public participation and engagement. The consequences of low trust in the institutions of government are only too starkly seen in Europe where low vaccination and high death rates match those countries with the lowest ratings for trust in government.
Although New Zealand performs well in the OECD trust in government statistics, recent incidents involving skirting, if not breaching, electoral funding rules by parties and politicians, while not endemic, should be a cause of concern. It is also a concern that, under the current framework, over two-thirds of the nearly $7 million in donations over the last election was received from undisclosed donors, placing us increasingly out of step with other jurisdictions that more rigorously restrict or ban this type of political support.
Issues with the current regime include the differing thresholds for anonymous donations ($15,000 for parties, while only $1500 for candidates), rules that encourage the practice of splitting larger donations to keep within anonymity or reporting thresholds, and the limited ability to scrutinise associations between donors among other things.
For this reason, the independent review of New Zealand's electoral laws announced in September was timely. As are the targeted changes that the Government is considering for implementation before the 2023 election, and which opened for feedback on 3 December 2021 (closing 22 January 2022).
These targeted proposals are intended to increase transparency and, through improved reporting, better inform broader reforms under consideration for the 2026 election such as: public funding of parties; the length of electoral terms; Te Tiriti o Waitangi obligations; restrictions based on who is donating (eg corporations, unions); among other things.
Targeted changes under consideration for the 2023 election
The key change for donors is that, to remain anonymous, any donation to a party must be under $1,500 rather than $15,000 which is the current limit. This brings the anonymous donation threshold in line with donations for candidates and avoids incentives to use the party option to donate to a candidate. A person supporting a candidate will no longer be able to provide support by way of a loan without this being disclosed.
For parties and candidates, there will be more regular reporting (3 or 4 times a year rather than annually, to improve the timeliness of information), and requirements to provide details of amounts and volume of all donation under $1500 (rather than just anonymous donations). Other proposals include more detailed disclosures around in-kind donations, and clearer rules around auctions and fundraising.
Separately, the Government is proposing targeted rule changes to allow changes between the Māori Electoral Roll and the General Roll to coincide with the electoral terms of three years – currently, those wanting to move between rolls can only do so every five or six years, in line with the census.
Anonymous donations – should they be banned?
A primary focus of the proposed changes is anonymous donations with consideration also being given to banning this category of donations altogether. Critically, the proposed changes, or even a ban, would not impact on an existing formal mechanism which enables anonymous donations to be made through the Electoral Commission up to the value of $49,000, but is rarely used.
The argument for anonymous donations is to preserve freedom of political expression by allowing donations while protecting privacy. The countervailing consideration is transparency around improper influence, and perceptions of improper influence.
Overseas, the argument in favour of anonymity is increasingly carrying less weight, with anonymous donations effectively banned in many other OECD jurisdictions (Canada sets the threshold at $200, and Ireland at just €100).
The public interest in restricting or banning the current anonymous donation rules is strong because, while anonymous to the public, in practice, the donor is often known to the recipient. It means there is little way of knowing who has the ear, and as Professor Andrew Geddis put it, the "gratitude" of our political decision-makers and no way of holding politicians to account about who they might be influenced by. The fact that the more formal Electoral Commission process for anonymous donations is infrequently used suggests these softer anonymous donations rules might be preferred precisely because they can be more easily skirted. The risk is that this apparent anonymity, becomes viewed as an acceptable practice (if it hasn't already).
Overall, the proposed tightening of the rules for 2023 is more than technical tweaking. The proposed changes will make it harder to split donations to avoid disclosure requirements, remove channelling mechanisms used to obfuscate candidate donors, and provide invaluable information for the wider review. It leaves less room for speculation and suspicion and, accordingly, less room for erosion of trust and participation in our political processes.
The looking glass should give us a truer reflection of who we are as a democratic polity after these reforms.
In the news
Ombudsman commences investigation into MIQ booking system
On 20 October 2021, the Chief Ombudsman Peter Boshier launched an investigation into the Managed Isolation and Quarantine (MIQ) booking system. The Chief Ombudsman's role is to investigate and report on the actions, decisions, and/or omissions of public sector agencies – in this case, the Ministry of Business, Innovation and Employment (MBIE), which manages the MIQ booking system. Mr Boshier had received approximately 200 complaints since 1 July 2021 relating to the MIQ booking system, which broadly fall into four categories: claiming that the allocation system is unlawful, unfit for purpose, unfair, and poorly managed. An additional specific complaint relates to the accessibility of the booking system, and whether people who have difficulty using the digital platform are being disadvantaged. After reviewing these complaints, the Chief Ombudsman has decided to address them collectively by commencing a self-initiated investigation using his powers under section 13(3) of the Ombudsmen Act 1975.
The focus of the investigation is to form an independent opinion on how MBIE is discharging its responsibilities with respect to MIQ booking decisions, identify whether there are any vulnerabilities that may be leading to the concerns and complaints as to whether people are being treated fairly, and make recommendations for improvement as necessary. Any new complaints received during the course of the investigation will be assessed to consider whether they ought to be brought into the investigation, or resolved individually. The investigation will not include decisions or recommendations made by Ministers or by Cabinet, as these do not fall within the Ombudsman's jurisdiction.
Mr Boshier aims to report to Parliament on his substantive findings in early 2022. He may also make public statements on his findings on the four issues under investigation at different stages, rather than waiting to publish an overall opinion at the conclusion of the investigation. The outcome of the full investigation will also be published on the Office of the Ombudsman website.
Three Waters Reform update
In early November, Local Government Minister Nanaia Mahuta, announced the establishment of a working group to recommend strengthened governance and accountability arrangements for the Three Waters Reform Programme.
The Working Group on Representation, Governance and Accountability (Working Group) is made up of 20 members, including nine mayors and nine iwi/Māori representatives. The terms of reference provide that iwi/Māori are required to represent a Treaty partner perspective, rather than representing their individual iwi or hapū. The remaining two members are the chair of the Central and Local Government Three Waters Steering Committee, Brian Hanna, and public sector advisor, Doug Martin (who will head the Working Group). The Minister is confident the Working Group will bring a diverse and representative perspective to the table.
The Group has been tasked with recommending a stronger approach to representation, governance and accountability of the four new water services entities, as an alternative to the model proposed under the Government's initial reforms. The Working Group's terms of reference also give a number of bottom lines required by Ministers, which include:
- that the entities retain balance sheet separation, which would give them the ability to borrow sufficient sums to meet infrastructure needs;
- giving effect to the Crown's Te Tiriti o Waitangi obligations, including enabling iwi/Māori to have rights and mechanisms of influence;
- ensuring good governance through roles and responsibilities, and board selection processes based on merit and competence; and
- ensuring that each water services entity remains in public ownership.
The Working Group must report back to the Minister by 28 February 2022.
Investigation into electricity supply interruptions concludes
Following our September update, the report of the investigation into the interruption of electricity supply on 9 August 2021 has found that there was sufficient discretionary load capability to maintain system power. However, Transpower as the electricity system operator had inadequate visibility or awareness of the resources available. As a result, the report has released 18 recommendations, covering five key themes:
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Performance of the system and system operator - two recommendations relating to ensuring that available discretionary load is exhausted before disconnecting, and that the Electricity Authority review and strengthen its oversight of the system operator.
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Wholesale market and supply side - two recommendations relating to improving forecasting and finding new products to manage risk.
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Demand response and demand side participation - four recommendations relating to demand side response, visibility of discretionary load availability, and the development of a new product for managing shortfalls.
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Information and communications - nine recommendations relating to improving information provision and communications in a grid emergency, including establishing best practice arrangements for medically dependent consumers, and undertaking cross-industry contingency exercises.
- Looking ahead - one recommendation relating to demonstrating leadership.
NZ becomes the first country in the world to pass climate reporting legislation
On 21 October 2021, New Zealand became the first country in the world to pass legislation that requires reporting on climate-related risks and opportunities. The Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021 aims to make a significant contribution to New Zealand achieving carbon neutrality by 2050. It intends to do this by ensuring the effects of climate change are routinely considered in business, helping entities to demonstrate responsibility and foresight in consideration of these issues, and assisting them to transition to a more sustainable, low emissions economy.
The Act, which received royal assent on 27 October 2021, amends the Financial Markets Conduct Act 2013, the Financial Reporting Act 2013 and the Public Audit Act 2001. It aims to implement a single broad policy to broaden non-financial reporting by requiring and supporting the making of climate-related disclosures and related matters.
Alongside the passing of the Act, the External Reporting Board (the entity tasked with developing the climate reporting standards for the new regime) began consultation on 20 October 2021 on the first two sections (Governance and Risk Management) of the standards. Drafting and consultation on the standards will continue next year.
In addition, the Financial Markets Authority, as the entity responsible for the monitoring and enforcement of the climate disclosure regime, published its implementation approach for the Act on 17 November 2021.
See our most recent insight article on this update here.
Government announces new COVID-19 testing and contact tracing strategies
The Government is expanding its testing and contact-tracing strategies with the intention of aiding the transition from an elimination strategy to the new COVID-19 Protection Framework. Associate Minister of Health Dr Ayesha Verrall announced the wider use of rapid antigen testing, increased daily laboratory capacity for PCR tests, a new national telehealth case investigation service, and nearly $1 billion invested in testing, contact tracing and case investigation.
The new testing strategy involves the use of rapid antigen tests which seek to provide accessibility, convenience and speed. They can often produce results in less than 15 minutes, and can be conducted at businesses or homes, as opposed to only at Community Testing Centres. However, these tests are less accurate than the conventional PCR tests (which will continue to be the primary diagnostic test) and any positive antigen test result will need to be confirmed with a PCR test. From 1 December 2021, businesses have been able to obtain rapid antigen tests directly from authorised suppliers for use within their workforce. From 15 December, rapid antigen tests will also be available at pharmacies for the general public, although they must be administered under the supervision of pharmacy staff. Other new testing measures include saliva-based PCR testing and rapid PCR tests.
Work is also underway to increase the daily laboratory capacity for PCR tests to 60,000 tests, with the aim of protecting vulnerable and high-risk communities alongside targeted testing. The new national telehealth case investigation service, with 475 trained investigators, is intending to add significant capacity to the Public Health Units and aims to recruit Māori and Pacific staff to ensure they can respond to those communities.
With a focus on symptomatic testing and surveillance testing in high-risk settings, these new strategies seek to increase the protections in place and provide greater certainty.
Submissions open on the Electricity Authority's review of competition in the wholesale market
The Electricity Authority (Authority) recently released a review on competition in the wholesale market and has now opened submissions on this review alongside a further issues paper.
The review was undertaken in response to the sustained high (approximately double) spot prices after the Pohokurae outage in 2018. The review looked at whether electricity spot prices (the price retailers pay when buying electricity from the wholesale market) were determined in a competitive environment. Although it was not possible to definitively determine whether the increase in prices was entirely due to underlying conditions, which is a sign of a competitive market, or whether some of the increase was due to prices not being determined in a competitive environment, the Authority found evidence to suggest the latter. The review also found that the presence of the New Zealand Aluminium Smelter at Tiwai Point is increasing energy costs for the rest of the country and that investment in efficient and low carbon technology may have been impeded over the period of the review, although this now appears to be improving.
The Authority is seeking feedback on the content, methodology and indicators it used in its review paper. Alongside the review, the Authority issued a companion issues paper 'Inefficient price discrimination in the wholesale market' to address the incentives in the industry that enable potential inefficiencies. The Authority is seeking feedback on whether regulatory interventions are required to mitigate efficiency concerns, and what options the Authority should consider to enhance the long-term interests of consumers.
Submissions are due on 22 December 2021.
APEC Economic Leaders' Summit concludes
On 12 November 2021, Prime Minister Jacinda Ardern chaired the 2021 APEC Economic Leaders' Meeting, marking the end of New Zealand's APEC host year.
The Economic Leaders' Meeting is the inter-governmental forum's biggest event of the year, with hosting rights rotating through its 21 member economies. The event brought leaders together to discuss important issues facing the Asia-Pacific region. While APEC has traditionally focused on matters of trade and investment, the 2021 meeting focused on a broad range of issues – including sustainability, technology and inclusivity.
At the meeting, representatives from all 21 APEC member economies agreed to implement the new Aotearoa Plan of Action (the Plan). The Plan intends to provide tangible steps towards achieving the "Putrajaya Vision," which is a mission statement for APEC's work over the next 20 years. The Putrajaya Vision is to create an open, dynamic, resilient and peaceful Asia-Pacific community by 2040 through focusing on three key economic drivers - trade and investment, innovation and digitisation, and sustainable and inclusive growth. In pursuit of this, the Plan sets out both individual actions, that members may choose to implement through domestic policy, and collective actions, alongside a method for evaluating APEC's progress towards achieving the Putrajaya Vision.
As part of the meeting, the leaders also issued a joint declaration recognising the work done by APEC economies during New Zealand's host year. This included:
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reducing inequities in access to COVID-19 vaccines;
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accelerating digital adoption and transformation;
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taking practical steps to transition away from carbon and halt the increase in subsidies to fossil fuels;
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highlighting indigenous peoples and those in rural and remote areas as wielding economic potential; and
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committing to continuously finding ways to reduce the costs of starting and doing business.
The full declaration can be found here.
End of Life Choice Act 2019 takes effect
The End of Life Choice Act 2019 (the Act) introduces a regime for medically assisted dying in New Zealand. The Act came into effect on 7 November 2021, nearly one year after 65.1% of voting New Zealanders voted in favour of it in a public referendum.
The Government has appointed a three-person specialist committee to oversee the operation of the Act, and of which membership must include a medical ethicist, a doctor specialising in end-of-life care and a health practitioner. The role of the committee is to review reports on assisted deaths and report to the Registrar (assisted dying) at the Ministry of Health. This independent review mechanism aims to be a safeguard to support the service to operate in line with the criteria set out by the Act.
The Act also requires the formation of the Support and Consultation for End of Life in New Zealand group (SCENZ). The body was appointed in August 2021 and its responsibilities include maintaining a list of health practitioners providing assisted dying services and helping develop and oversee standards of care.
The Ministry of Health aims to increase access to assisted dying services for Māori by incorporating aspects of Te Tiriti o Waitangi into the implementation process. Te Apārangi: Māori Partnership Alliance provides guidance, direction, and recommendations to the Ministry of Health, and its members include health and disability service providers, researchers, and Māori disability and sector experts.
Key outcomes from COP26 negotiations
Minister of Climate Change James Shaw recently attended the UN Climate Change Conference of the Parties (COP26) in Glasgow on behalf of New Zealand. The key outcomes of the final agreement from COP26 are as follows:
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Agreement that immediate, large scale reductions to emissions are critical to reach net zero emissions by 2050 and to keep global temperatures below 1.5°C degrees. Countries are required to strengthen their carbon cutting pledges by the end of 2022 to align with this goal.
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Recognition was given to the need to protect human rights and the rights of indigenous people when taking action to cut emissions. The final agreement also included a commitment by parties to support those nations most vulnerable to the effects of climate change.
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Rules enacted with the aim of ensuring the environmental integrity of global carbon markets and transparency in how climate action is reported.
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A new work programme seeking to accelerate climate ambition by way of an annual check on progress that would be permanently on the agenda for future COPs.
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An agreement intending to accelerate efforts to phase down coal and inefficient fossil fuel subsidies.
In light of these key outcomes, the Minister of Climate Change announced that the Emissions Reduction Plan (to be published in 2022) will play a central role in ensuring New Zealand meets its obligations under the final agreement of COP26.
At the conference, climate Ministers from Costa Rica, Fiji, Iceland, New Zealand, Norway and Switzerland also came together to progress negotiations, and issue a joint statement expressing support for the Agreement on Climate Change, Trade and Sustainability (ACCTS). The statement aims to demonstrate that trade rules and policies can be mutually supportive of trade, sustainable development and climate objectives. The statement also highlighted the importance of finalising the Agreement quickly to expand ACCT's membership to other WTO members willing to meet its standards and gain the benefits of multilateralisation. The full joint statement is available here.
Submissions open on proposed registration regime for log traders and forestry advisers
On 26 November 2021, the Ministry for Primary Industries opened public submissions on the proposed registration system under the Forests (Log Traders and Forestry Advisers) Amendment Act 2020 and released a consultation document for consideration.
Under the new Act, which was enacted in August 2020, log traders and forestry advisers must register to operate in these capacities from 6 August 2022, assuming they are not exempt from the regime. There will be a one-year transition period for log traders and forestry advisers to register before penalties will apply. The registration system will include:
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A register accessible by the general public.
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Registered log traders and forestry advisers will need to meet a fit and proper person test to register. They may also have to provide evidence of relevant qualifications and/or experience in the forestry and wood processing sector.
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Record keeping requirements for registered log traders and forestry advisors will apply.
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It is intended that a new complaints process will be set up for resolving complaints about unsatisfactory conduct or misconduct by registered log traders and forestry advisers.
The system is intended to assure the public that the registered log traders and forestry advisers they may deal with meet the forestry practice standards and that they are receiving expert and impartial advice from forestry advisers with the right knowledge and experience.
The Ministry for Primary Industries is seeking submissions on how this regulatory system, and the regulations that will give effect to it, are developed prior to implementation. Submissions are due on 17 January 2022.
In trade
Agreement in principle reached for New Zealand – UK free trade agreement
On 21 October 2021, the Government announced that New Zealand and the United Kingdom (UK) had reached an 'Agreement in Principle' on the key elements of a new free trade agreement (FTA). The announcement of the Agreement in Principle marks a significant development in trade relations between New Zealand and the UK, with the UK currently New Zealand's seventh-largest trading partner with two-way trade valued at $6 billion in March 2020.
The Agreement in Principle is underpinned by the legal text of the agreement but does not in itself create any legally binding obligations. While negotiations are still underway to finalise the details of the legal text, the Agreement in Principle outlines the key commitments from both sides. Among the various commitments, the Agreement in Principle includes the following:
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UK eliminating tariffs on over 97% of product lines when the FTA enters into force. These commitments will cover 63% of New Zealand’s current exports, including wine, honey, onions, kiwifruit and many dairy products. New Zealand will remove all tariffs when the FTA enters into force. However, different commitments have been agreed for specific products, including beef, sheep meat, butter, cheese and fresh apples. The full tariff schedules and associated rules of origin information will be available when the text of the agreement is released.
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Specific commitments on climate change, which will contain provisions on eliminating environmentally harmful subsidies.
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New Zealand raising the screening threshold under the Overseas Investment Act 1982 for UK investors to the same level that many of New Zealand’s existing FTA partners already benefit from ($200 million).
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Changes to New Zealand's intellectual property regime, including extending the copyright term by 20 years for authors, performers, and producers; and introducing an artist resale right scheme.
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Acknowledgement of Māori economic and trade interest throughout the agreement, including a Te Tiriti o Waitangi exception which will protect the New Zealand Government’s ability to adopt policies it considers necessary to fulfil its obligations to Māori, including under the Te Tiriti o Waitangi.
The Agreement in Principle notably excludes an investor state dispute resolution scheme and noted that the investor-state provisions in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership will not apply between New Zealand and the UK, should the UK accede to that agreement.
Once negotiations on the full legal text of the agreement are finalised, both countries will begin their domestic processes for ratification in order for the FTA to enter into force. A timeline on the steps necessary to ratify the FTA can be found here and the full text of the Agreement in Principle can be found here.
Ratification of the Regional Comprehensive Economic Partnership
Aotearoa New Zealand has ratified the Regional Comprehensive Economic Partnership (RCEP) which will enter into force early next year, after bipartisan support. The RCEP, once in force, will be a trade agreement between 15 economies across the Indo-Pacific region. It will be the world's largest free trade agreement with scope over almost one third of the global population, nearly a third of the world's GDP.
The intended implications of this for New Zealand businesses, exporters, and investors are as follows:
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one set of trade and investment rules that apply across the RCEP region in an effort towards simplicity and increased certainty;
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increased opportunities for New Zealand exporters to get their products into RCEP-wide regional value chains;
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increased market access opportunities, in particular for investment and services into China and some Association of Southeast Asian Nations (ASEAN) member states;
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a reduction in barriers for exporters, and more streamlined trade;
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the introduction of new rules on Government procurement, competition policy and e-commerce, which would enable New Zealand exporters to seize business opportunities; and
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reduced spoilage in the export of perishable good as Customs authorities will now release these goods within six hours of arrival.
Independent analysis by ImpactECON estimates that this agreement will result in an increase of New Zealand's GDP between 0.3% and 0.6%, or $1.5 to 3.2 billion, over a period of 20 years.
In the House
What’s coming up in the House
This is the last sitting week of the House for 2021. The last sitting day is scheduled for 16 December 2021. The House is scheduled to return on 8 February 2022.
The House has approved the sitting calendar for 2022:
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February 8, 9, 10, 15, 16, and 17;
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March 1, 2, 3, 8, 9, 10, 15, 16, 17, 29, 30, and 31;
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April 5, 6, 7, 12, 13, and 14;
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May 3, 4, 5, 10, 11, 12, 17, 18, 19, and 31;
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June 1, 2, 7, 8, 9, 21, 22, 23, 28, 29, and 30;
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July 26, 27, and 28;
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August 2, 3, 4, 9, 10, 11, 23, 24, 25, 30, and 31;
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September 1, 13, 14, 15, 20, 21, 22, 27, 28, and 29;
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October 18, 19, 20, 25, 26, and 27;
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November 8, 9, 10, 15, 16, 17, 22, 23, and 24;
- December 6, 7, 8, 13, 14, and 15.
Progress of legislation
Bills introduced
Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Carmel Sepuloni
This Bill proposes a number of changes to expand coverage for injuries covered by the Accident Compensation Scheme (Scheme), and seeks to provide further clarity for claimants.
A key focus of the Bill is the extension of coverage for accident injuries covered by the Scheme to include a specified list of maternal birth injuries that have the same characteristics as injuries that are already covered. Currently, maternal childbirth injuries are not considered within the definition of 'accident' in the Accidence Compensation Act 2001 because they are not considered to be caused by "the application of a force (including gravity), or resistance, external to the human body", because until a foetus is born, it is legally considered to be internal to the human body. The Bill intends to amend this definition to include forces internal to the human body at any time from the onset of labour to the completion of delivery that results in an injury included on the proposed list.
The Bill also includes a number of other proposed changes to the Accident Compensation Act, including:
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addressing a technical anomaly in how the Accident Compensation Act interacts with the End of Life Choice Act 2019;
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lowering the threshold for injury-related hearing loss cover from six percent to five percent;
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requiring ACC to take into account what someone earned before an injury, when determining if they can return to work;
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increasing the number of ACC Board members from eight to nine;
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clarifying the section 30 test for work-related gradual process, disease, or infection cover, putting the burden back on ACC to prove that a disease or infection is not work related;
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excluding Veteran's Support Act 2014 weekly compensation top-up from abatement against ACC's weekly compensation payments; and
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a number of other technical changes for clarity purposes and alignment with other legislation.
Canterbury Regional Council (Ngāi Tahu Representation) Bill
Type of Bill: Local
Member in charge: Rino Tirikatene
This Bill would reinstate direct Ngāi Tahu representation on the Canterbury Regional Council (Council) (trading as Environment Canterbury and often referred to as ECAN). The Bill would allow Te Rūnanga o Ngāi Tahu to appoint two members to the Council, who would be added to the pre-existing 14 council members, to make 16, after the 2022 local election. The Council recognised the contribution made by Ngāi Tahu members to the Council's governance and operations and, through this Bill seeks to reinstate direct Ngāi Tahu representation at Council level. A number of different options for Ngāi Tahu representation were considered, however as the Council only has one iwi with mana whenua throughout its region (Ngāi Tahu), the direct appointment of Council members by Te Rūnanga o Ngāi Tahu was chosen to reflect Ngāi Tahu as mana whenua and to allow for consistency with Ngāi Tahu tikanga.
Child Protection (Child Sex Offender Government Agency Registration) (Overseas Travel Reporting) Amendment Bill
Type of Bill: Member's
Member in Charge: Greg O'Connor
This Bill would amend the Child Protection (Child Sex Offender Government Agency Register) Act 2016 to require registered child sex offenders to provide additional information to Police before travelling overseas. The information required to be disclosed to police would include:
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The addresses of all places the registered person plans to stay for more than 48 hours;
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The number identifying the country of issue of all passports they hold; and
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Timely and reasonable explanation of any changes.
This Bill aims to align international travel reporting requirements with domestic travel. Under the proposed Bill, where reporting requirements are not met without good reason, the same penalties as in the equivalent domestic travel provisions would apply.
Education and Training Amendment Bill (No 2)
Type of Bill: Government
Member in Charge: Hon Chris Hipkins
The purpose of this Bill is to make amendments across a range of matters in the Education and Training Act 2020 to give effect to new policy decisions and to make other minor technical changes. The Bill seeks to amend the Act in a number of ways, including:
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To align the Police vetting provisions in the Act more closely with the safety checking requirements in the Children's Act 2014;
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To adapt the Teaching Council disciplinary processes;
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To provide increased flexibility for the Government to regulate compulsory student service fees charged by education providers;
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To introduce a new type of casual vacancy on school boards that relates to board members who are removed for breaching a code of conduct; and
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To amend the Act's regulation-making powers so that regulations can provide for notices to specify the qualifications that must be held by persons controlling, or working as educators within, an early learning service.
Education and Training (Freedom of Expression) Amendment Bill
Type of Bill: Member's
Member in charge: Dr James McDowall
The Bill would amend the Education and Training Act 2020 by inserting a new section requiring that institutions take all "reasonable steps to ensure that freedom of speech within the law is secured for staff and students of the institution and for visiting speakers". The Bill would require that institutions issue and keep up to date a code of practice on how they will maintain freedom of speech. Additionally, the Bill would disallow an institution's council from relying on its duty to eliminate or minimise potential risk of mental harm to staff, students, or visitors (under the Health and Safety at Work Act 2015) "as a reason not to comply" with its duty to ensure freedom of speech under the Bill.
The proposed Bill also includes a section relating to the Tertiary Education Commission and its assessment of proposed plan.
Further, the Bill seeks to remove funding from institutions which do not comply with the proposed duty to protect freedom of speech.
Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill
Type of Bill: Member's
Member in Charge: Dr Deborah Russell
This Bill intends to extend the available period to raise a personal grievance that involves allegations of sexual harassment from 90 days to 12 months. The Bill recognises the difficulty that victims of workplace sexual harassment experience in coming forward to report sexual harassment and seeks to give victims more time to come forward, by removing arbitrary temporal barriers.
Financial Professional Services Trading Advice Transparency Bill
Type of Bill: Member's
Member in Charge: Barbara Kuriger
This Bill seeks to remove the conflict of interest created where the provision of initial advice for which the professional services firm is appointed could result in subsequent fee-earning business. This Bill would achieve this through preventing professional advisors who recommend receivership, liquidation, or administration of a business, or any other status requiring a third party to manage the ongoing trading or management of the business, or disposal of its assets, from undertaking any of those subsequent roles for the entity in question.
Gambling (Reinstating COVID-19 Modification) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Jan Tinetti
This Bill would amend the Gambling Act 2003 to reinstate a modification of the definition of remote interactive gambling device during a specified period due to the effects of COVID-19. This would enable Class 3 lotteries to be conducted remotely until the close of 31 October 204. Class 3 lotteries are used to raise funds for charitable or non-commercial purposes.
Maniapoto Claims Settlement Bill
Type of Bill: Government
Minister in Charge: Hon Andrew Little
On 11 November 2021, a Deed of Settlement was signed between Maniapoto and the Crown. This deed is the final settlement of all historic Treaty of Waitangi Claims of Maniapoto resulting from acts or omissions by the Crown before 21 September 1992. The Bill will give effect to certain matters contained in the Deed of Settlement that require legislative implementation and record the acknowledgments and apology of the Crown, given to Maniapoto.
Oranga Tamariki Amendment Bill
Type of Bill: Government
Member in charge: Hon Kelvin Davis
This Bill seeks to amend the Oranga Tamariki Act 1989 by partially repealing the subsequent-child provisions, repealing a redundant information sharing provision, and amending technical errors and ambiguities. The first amendment responds to a first principles review of the provisions which found they were not operating in a way that promoted the best interests of children, nor in the way originally intended. The second amendment responds to the finding that the provision could place unnecessary administrative burden on child welfare and protection agencies, without achieving the level of public accountability originally envisaged.
Palmerston North Reserves Empowering Amendment Bill
Type of Bill: Local
Member in charge: Tangi Utikere
The Palmerston North City Council holds certain land which cannot be sold under the Palmerston North Reserves Act 1922. This Bill would amend the Palmerston North Empowering Act 1966 by introducing a mechanism that allows the Council to sell land for development if it becomes surplus to its requirements.
Sale and Supply of Alcohol (Exemption for Race Meetings) Amendment Bill
Type of Bill: Member's
Member in Charge: Ian McKelvie
This Bill would exempt racing clubs from section 235 of the Sale and Supply of Alcohol Act 2012 on the days of race meetings. Section 235 creates an offence where an occupier of an unlicensed premises allows the premisses to be used as a resort for the consumption of alcohol. Essentially, the Bill would allow racegoers to "bring their own" alcohol to race meetings.
Security Information in Proceedings Legislation Bill
Type of Bill: Government
Member in Charge: Hon Kris Faafoi
The Bill seeks to amend several pieces of legislation and provides an overarching and coherent framework for dealing with security information in court proceedings. The scope of the Bill spans across civil proceedings, including judicial review of administrative decisions, and criminal proceedings. The Bill would allow, in a specified proceeding, for the court to be closed to the public, media, any non-Crown parties and their lawyers. The Bill is the Government's response to Part 2 of the Law Commission's report The Crown in Court: A Review of the Crown Proceedings Act and National Security Information in Proceedings, which found that current frameworks for dealing with national security information either in court or in administrative decisions have been developed in an ad hoc manner.
Key overarching goals of the Bill are to:
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provide increased assurance to the Crown that national security information can be used in court proceedings while still being protected;
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standardise and clarify protections for non-Crown parties; and
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ensure consistent processes are followed in a way that addresses natural justice requirements as far as possible.
Bills awaiting first reading
Bills defeated
Bills before Select Committee
Submissions open
Submissions closed
Bills awaiting second reading
Committee of the whole House
Bills awaiting third reading
Bills awaiting Royal Assent
Acts assented
Counter-Terrorism Legislation Act 2021
This omnibus Act amends New Zealand's counter-terrorism legislation, giving the Government greater powers in respect of terrorism and associated activities, and in part, implement recommendation 18 of the Report of the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019. The Act amends the Terrorism Suppression Act 2002, and makes further minor amendments to the Search and Surveillance Act 2012, and the Terrorism Suppression (Control Orders) Act 2019. The first key amendment is to the definition of a "terrorist act", including changing one of the mens rea elements from an intention to "induce terror" to an intention to "intimidate". The Act also expands on the type of support that would be criminalised to include material support, as opposed to mere financial support. Material support does not include humanitarian support to satisfy basic needs. The final key changes are new offences for: planning to carry out a terrorist act, regardless of whether it is carried out; travelling to, from, or via New Zealand to commit or support a terrorist act; and providing or receiving weapons or combat training knowing that it is for terrorist acts.
COVID-19 Public Health Response Amendment Act 2021
This Act amends the COVID-19 Public Health Response Act which established the legal framework for New Zealand's COVID-19 response (you can read our previous insights into the original Act here). This amendment Act extends the operation of that framework to May 2023, with some adjustments based on the efficacy and weaknesses of previous measures implemented.
The key changes made by the Act include:
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Increasing the flexibility of the orders that may be made by the responsible minister and the Director General of Health;
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Supporting the management of MIQ programmes by setting powers and responsibilities of key members involved;
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Adapting the enforcement regime to allow greater flexibility in setting penalties for specific infringements and setting higher penalties for some established offences;
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Creating offences for failing to maintain the privacy of information gathered through contact tracing; and
Introducing new regulations around traffic checkpoints, including a broadening of who may be authorised to participate in those checkpoints.
COVID-19 Response (Management Measures) Legislation Act 2021
This omnibus Act aims to facilitate the management and recovery from the effects of COVID-19. It amends a suite of 16 other statutes and one set of regulations to reflect and respond to the outbreak of the Delta-variant of COVID-19. Many of the changes are minor and administrative in nature, including the extension of statutory deadlines, allowing remote compliance with regulatory requirements, and extending provisions introduced in earlier legislation. More substantively, the Act:
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Amends the Property Law Act 2007 to insert an implied term into all commercial leases, whether in operation before the commencement of the Act or otherwise. The term requires landlords and tenants to agree to a fair proportion of rent to be abated in the event that a lessee is unable to gain access to any or all part of a leased premises, due to COVID-19 restrictions. The Act also provides guidance on factors to consider in reaching that agreement, and dispute resolution mechanisms if an agreement cannot be reached. This obligation may be negatived, varied, or extended by agreement, and is repealed automatically when the epidemic notice is revoked.
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Amends the Residential Tenancies Act 1986 to enable the minister responsible to make an order that "switches on" restrictions on tenancy termination. The restrictions would mean that any tenancy that has been, or would have been, terminated or would otherwise have ended while the restrictions are in place will continue, and may only be terminated after the restrictions are no longer in place. It also allows the tenancy tribunal to operate more flexibly in the event of disputes.
Amends the Climate Change Response Act 2002 to extend the statutory deadline for setting the first three emissions budgets and implementing the emissions reduction plan.
COVID-19 Response (Vaccinations) Legislation Act 2021
This omnibus Act provides the legal framework required to support making vaccinations a more prominent part of New Zealand's COVID-19 response. It amends the COVID-19 Public Health Response Act (you can read our previous insights into the original Act here).
The Act broadens the range of orders that may be made by the Minister. It allows the Minister to make orders around vaccination requirements and certificates, including orders restricting access to specified places, unless in compliance with specified measures (such as having a COVID-19 vaccination certificate). The Minister is also empowered to make orders specifying the work or classes of work that may not be carried out unless a worker is vaccinated, and duties are imposed on employers to not allow unvaccinated workers to carry out that specified work.
Additionally, employers are empowered to conduct an assessment as to whether it is reasonable for them to require workers to be vaccinated in carrying out work, and regulations may be issued under the Act to provide employers with guidance in making that assessment. Subject to standard personal grievance claims, an employer is entitled to terminate a worker if, after reasonable time is given, that worker remains unvaccinated.
Crown Minerals (Decommissioning and Other Matters) Amendment Act 2021
This Act introduces a number of provisions to mitigate the risk to the Crown and other third parties of having to carry out and fund decommissioning of petroleum infrastructure.
The Act amends the Crown Minerals Act 1991 to:
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introduce an explicit statutory obligation for all current and future petroleum permit and license holders to undertake and pay for decommissioning activities;
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introduce civil pecuniary and criminal penalties for failing to fund and carry out decommissioning;
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hold parties who transfer out of the permit or licence after the legislation is enacted liable for meeting the costs of decommissioning if the new permit or licence holder failed to carry out and fund decommissioning;
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enable the Minister to more effectively and regularly monitor a permit or licence holder's financial position and plans for field development, and assess a permit or licence holder's financial capability to complete decommissioning;
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require permit and licence holders to obtain and maintain adequate financial security that the Crown could access if the permit or licence holder failed to meet their obligations; and
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enable the Crown to collect payments to meet the cost of any post-decommissioning work.
The provisions in the Act will apply to the holders of petroleum permits under the Crown Minerals Act and holders of licences granted under the Petroleum Act 1937. The Act also makes amendments to the Crown Minerals Act that are not specific to decommissioning. The amendments include increasing the decision-making test for permit acquisitions and widening the enforcement options available to the regulator.
Drug and Substance Checking Legislation Act 2021
The Drug and Substance Checking Legislation (No 2) Act 2021 (2021 Act) amends the Misuse of Drugs Act 1975, Psychoactive Substances Act 2013 and the Medicines Act 1981. The 2021 Act replaces the Drug and Substance Checking Legislation Act 2020 (2020 Act), which will be automatically repealed in December 2021. The 2020 Act enabled the Director-General of Health to authorise drug and substance checking providers (Providers) to test the composition of drugs without committing an offence. Prior to the passage of that Act, drug testing organisations were at risk of prosecution under possession or supply charges.
The 2021 Act is described as "similar in most respects" to the 2020 Act. It carves out an exemption for Providers from drug offences under three statutes, including provisions under the Medicines Act which the 2020 Act did not address. The 2021 Act sets out a legislative criteria for the appointment of Providers. Under the previous Act, the decision to appoint a Provider was at the Director-General's discretion.
Education and Training (Teaching Council Fees, Levies, and Costs) Amendment Act 2021
This Act amends the Education and Training Act 2020 to enable the Teaching Council of Aotearoa New Zealand to fix fees so that it can recover costs for all its functions and powers. It addresses the anomaly, founded by the High Court, that the original Act does not authorise the Council to fix fees for all of its functions.
This Act retrospectively validates the receipt of payments by the Teaching Council since 1 February 2021 under an annual fees notice that was quashed by the High Court after judicial review. However, this Act does not validate invalid fees. Payments received for invalid fees are to be credited to the concerned teacher for future fee payments.
Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Act 2021
This Act amends the Films, Videos, and Publications Classification Act 1993 to provide additional regulatory tools to mitigate any harms caused by objectionable content that is livestreamed or hosted online. This Act principally applies to online publications, but the urgent interim classification amendments apply to all publications covered by the Act.
The main implications of the Act are that:
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it allows for interim classification of online publications that stand for 20 days before a final classification is made in sections 22A to 22D;
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the Inspector of Publications can issue take down notices relating to particular online publications;
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online content hosts must comply with take down notices under s 119E; and
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the process for submitting a publication to the Classification Office is clarified in s 14A.
The biggest amendment to the original Bill following review by the Governance and Administration Select Committee related to the establishment of electronic filters as mechanisms for blocking or filtering objectionable online content. Part 7A of the Bill facilitated the establishment of government-back web filters that could be used to limit content available online to users. Concerns expressed by the Select Committee that such a filter would be unworkable and a lack of detail surrounding the establishment of such filters meant clauses 119L to 119O were left out of the final Act.
Whilst the original Bill only criminalised the actions of those who livestreamed objectional content themselves, section 132C was amended to make it an offence to share that content as well. The scope of the "safe harbour provisions" under ss 23 to 25 of the Harmful Digital Communications Act 2015 were also extended to the take-down notices in Part 7A so as to offer protection to online content hosts who are unaware that their platform is being used to distribute objectionable content.
Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021
This omnibus Act amends the Financial Market Conduct Act 2013 (FMC Act), the Financial Reporting Act 2013, and the Public Audit Act 2001 by broadening the non-financial reporting requirements of some large entities covered by the FMC Act to include climate-related disclosures.
The Act identifies the entities classified as climate reporting entities (CREs) which will be required to make climate-related disclosures. CREs include large registered banks and other deposit takers, large listed and licensed issuers, and large managers of managed investment schemes. The Act requires CREs to:
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prepare annual climate statements which disclose information about climate change's effects on their business or managed fund;
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prepare climate statements in accordance with the climate standards issued by the External Reporting Board (XRB);
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obtain independent assurance about section of the climate standard focussed on disclosure of greenhouse gas emissions; and
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publicise the climate change statements, and collect and retain the records that underpin them.
Under this Act, the XRB will also issue guidance on a wider range of environmental, social, and governance matters which can be voluntarily applied by entities.
Health (Fluoridation of Drinking Water) Amendment Act 2021
This Act amends Part 2A of the Health Act 1956. The Act is intended to increase dental health by reducing tooth decay, particularly in children. The Act enables the Director-General to direct a local authority to add or not add fluoride to the drinking water it supplies. In making a direction, the Director-General must consider advice from the Director of Public Health and invite written comments from the local authority. Once a direction is given it is an offence for a local authority not to comply.
Additionally, a new schedule was inserted that states that a local authority who is currently adding fluoride to drinking water must continue to do so unless they are directed not to do so by the Director-General, and that a local authority can add fluoride to drinking water without a direction from the Director-General.
Maritime Transport (MARPOL Annex VI) Amendment Act 2021
This Act aims to address the effects of shipping emissions on human health, environments in and around port communities, as well as on climate change, and depletion of the ozone layer. The Act aligns New Zealand's legislation with Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL). The Annex contains regulations requiring ships to minimise and manage their emissions of greenhouse gases, ozone-depleting substances, nitrogen oxides, sulphur oxides, and volatile organic compounds (Annex VI substances).
This Act provides a power for the Minister to make marine protection rules in relation to Annex VI substances. It also confers a number of discretionary powers on to the Director of Maritime New Zealand in relation to Annex VI requirements, including:
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granting exemptions from the marine protection rules;
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conducting inspections and audits;
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requiring ports to provide reception facilities;
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detaining ships and seizing marine protection products; and
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accepting marine protection documents.
Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021
This Act seeks to better protect individual rights and patient and public safety, and aims to enable the Mental Health (Compulsory Assessment and Treatment) Act 1992 to be applied more effectively.
Notable amendments to the 1992 Act include:
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eliminating indefinite treatment orders;
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enabling the legal custodian of a "special patient" (meaning someone who is liable to be detained or remanded to a hospital under the 1992 Act), to authorise a transport management plan, allowing restraint and use of force if necessary, with the government agency transporting the patient;
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allowing a family member or caregiver of a patient to be present by audio or visual link when the notice relating to the assessment examination made under section 9 of the 1992 Act is explained;
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removing the expiry date for technical and audiovisual link amendments made by the COVID-19 Response (Further Management Measures) Legislation Act 2020; and
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addressing technical drafting issues to improve the administrative efficiency of the 1992 Act.
Moriori Claims Settlement Act 2021
This Act gives effect to certain matters contained in the deed of settlement signed on 14 February 2020 by the Crown and Moriori. It records the Crown's acknowledgement and apologies given to Moriori in the deed, and settles all historical Treaty of Waitangi claims of Moriori in regards to the Chatham Islands. Amongst other things, the Act requires the Minister to recommend new customary fishing regulations to apply in the Rēkohu/Wharekauri fisheries area, to be managed by the trustees of the Moriori Imi Settlement Trust and the trustees for Ngāti Mutunga o Wharekauri by appointing tehieki/kaitiaki to issues authorisations for customary fishing.
New Zealand Superannuation and Retirement Income (Fair Residency) Amendment Act 2021
This Act amends the minimum residency requirements in the New Zealand Superannuation and Retirement Income Act 2001 that a person must meet to be eligible to receive New Zealand Superannuation. The Act increases the required time that a person must have been both resident and present in New Zealand for, from the previous requirement of not less than 10 years, to a period of not less than 20 years, after they turn 20 years of age. People will still need to have lived in New Zealand, the Cook Islands, Niue or Tokelau (or a combination of these) for at least 5 years since they turned 50. The additional years of residency required under the Fair Residency Act can be made from residency in New Zealand, the Cook Islands, Niue or Tokelau (or a combination of these).
Under the Act, refugees and protected persons have a residency requirement of 10 years if they are 55 or older or if they are between 45 and 55 a maximum residency requirement of the time until that person turns 65, in recognition of the fact that people in these categories are more vulnerable and do not have a choice as to when they arrive in New Zealand.
This Act will also impact the Veteran's Pension, as to be eligible for the Veteran's Pension a person must be eligible for New Zealand Superannuation
The Act contains a phased increase by birthdate to act as a transitional arrangement.
Regional Comprehensive Economic Partnership (RCEP) Legislation Act 2021
This omnibus Act amends the Customs and Excise Act 2018, the Tariff Act 1988, and changes the definition of "Tariff" to enable the implementation of the Regional Comprehensive Economic Partnership (RCEP) in New Zealand. The RCEP is a free trade agreement between New Zealand, Australia, China, Japan, South Korea, and the members of the Association of Southeast Asian Nations (ASEAN), which seeks to eliminate a range of tariffs on imports. These amendments enable the issue of New Zealand certificates of origin on goods for export to RCEP countries, the application of preferential tariff rates, and transitional safeguard measures to be applied in appropriate circumstances on imports originating from RCEP countries. This Act comes into force on 1 January 2022 by Order in Council.
Social Security (Subsequent Child Policy Removal) Amendment Act 2021
This Act removes the subsequent child policy from the Social Security Act 2019 and the Social Security Regulations 2018. The subsequent child policy affects the timing of work or work-preparation obligations that recipients of a work-tested benefit with defendant children need to satisfy. Under the old regime, if a parent has another child whilst receiving a main benefit, they may be required to look for or enter work when their child turns one or else risk losing some of their benefit income. The legislation also means that children will be taken into account until the age of 14 when determining sole parent support (instead of the age of one as previous). Importantly, this means that some sole parents currently receiving jobseeker support will be eligible to transfer to sole parent support.
The Social Services and Community Committee did not have any issues regarding the legislation to bring to the attention of the House.All amendments to the Bill as introduced were minor and technical.
Taxation (COVID-19 Support Payments and Working for Families Tax Credits) Act 2021
This Act, which amends the Tax Administration Act 1994 and the Income Tax Act 2007, relates to the COVID-19 resurgence support payments scheme (CRSP scheme) and to Working for Families tax credit settings (WFF settings). The CRSP scheme amendments adapt the existing COVID-19 Support Payments scheme into a more general COVID-19 support payments framework, which provides the Government with the flexibility to support businesses in a variety of changing circumstances. The WFF amendments provide for increases to the family tax credit and Best Start tax credit rates, the minimum family tax credit threshold, and the family credit abatement rate. The WFF amendments also include a minor remedial change to the indexation settings for the family tax credit and Best Start tax credit. These WFF amendments will apply from 1 April 2022, while the remainder of the Act came into force on the day of Royal Assent, 25 November 2021.
Water Services Act 2021
This Act implements the Government's decision to reform the drinking water regulatory system, with targeted reforms relating to the regulation and performance of wastewater and stormwater networks. The Act contains all the details of the new drinking water regulatory system, provisions relating to source water protection, and gives Taumata Arowai the legal authority to carry out its duties as New Zealand's dedicated water regulator. Key features of the Act include provisions for:
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providing a drinking water regulatory framework;
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providing a source water risk management framework which, alongside other legislation, regulation, and policies, seeks to enable risks to source water to be identified, managed, and monitored;
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providing mechanisms that enable the regulation of drinking water to be specific to the scale, complexity, and risk profile of each drinking water supply;
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establishing a framework which provides transparency about the performance of the three waters and network operators;
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providing mechanism to build and maintain capability across the water services sector; and
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establishing a framework for ongoing improvement of New Zealand water services.