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Watching Brief – April 2018

Home Insights Watching Brief – April 2018

Matter of opinion

Ministerial latte and the rule of law

The recent resignation of Carol Hirschfeld, head of content at Radio New Zealand (RNZ), and the scrutiny of her meeting at Astoria with Hon Clare Curran has brought into sharp focus the relationship Ministers have with Crown entities.   

While a meeting at a café on first blush may appear relatively benign, the underlying issue is one of legal and constitutional importance deserving of scrutiny and concern. In particular, the controversy has brought to attention the arm's length principle enshrined in the Crown Entities Act 2004 and the importance of Ministers acting within the scope of their statutory powers, when dealing with Crown entities.   

First, the Crown Entities Act was enacted to establish an arm's length model for government agencies in order to prevent undue political influence. The term "arm’s length" reflects an arrangement where the agency is sufficiently separate, so that Ministers cannot make everyday decisions on their operations. The Crown entity model was considered appropriate for RNZ given its public broadcasting function. It is of note that legislation that established the New Zealand Broadcasting Service in 1958 similarly required arm's length arrangements.

Second, the Crown Entities Act sets outs a carefully designed framework that prescribes the relationship between a responsible Minister and the entity's Board, including governance and accountability mechanisms. Key features of this model are as follows:

  • To the extent a responsible Minister can direct or control the Board, this must only be in accordance with the mechanisms set out in the Crown Entities Act. 
  • Ministerial direction must be by way of a formal Government Policy Statement (which entities must give effect to or have regard to depending on the type of Crown entity).
  • A Minister can also exercise a degree of control and oversight by way of engagement with the entity's Statement of Intent or Statement of Performance.
  • A Minister is prohibited from directing a Crown entity in relation to a statutorily independent function (notwithstanding the powers to provide direction referred to above). The statutorily independent functions given to RNZ under the Radio New Zealand Act 1995, section 13 of the Radio New Zealand Act emphasises editorial independence. 
  • In general, the Minister is responsible to ensure that an effective Board is in place to govern the Crown entity, to monitor and review Crown entity operations and performance, to set funding levels and remuneration, and manage risks on behalf of the Crown.  
  • The legislative arrangements necessarily require interaction between the Minister and the Crown entity at the Board level.

The requirements referred to above are reflected in the Cabinet Manual and in guidance provided by the State Services Commission. That is, it should be clear to any Minister that meeting with the head of content for RNZ was inconsistent with the Crown entity model, and potentially in breach of the requirements under the Crown Entity Act, and the Cabinet Manual.

There are also questions regarding whether Hirschfield should have informed CEO, Paul Thompson, in advance of the meeting. From a public law perspective, the more pressing issue lies with the Minister and the extent to which she adhered to the statutory environment in which she operates.

On the positive side, the issue reinforces the importance of those in power acting in accordance with our statutory and constitutional parameters. It also provides an important reminder lesson to all Ministers. 

As the old saying goes, with great power comes great responsibility. In an age where proper process of government is playing second fiddle to political expedience more often than not, it's important to preserve the principles of good governance from which we all benefit.

In politics

More teeth for the lions beneath the throne

Unlike our American counterparts, New Zealand courts do not have the ability to strike-down or invalidate legislation. Parliament can legislate as it wishes, even if its wishes are contrary to fundamental human rights enshrined in our Bill of Rights Act. 

What has been unclear to date is whether Courts can make a declaration that legislation breaches the New Zealand Bill of Rights Act. This is the dispute In Taylor v Attorney-General that was heard by the Supreme Court in March this year and is awaiting judgment.

The resolution to this constitutional tango between the Parliament and the Courts may well not be determined by the outcome of Taylor. This is because Justice Minister Andrew Little announced – a week before the case was heard – that Cabinet has approved, in principle, amendments to the Bill of Rights Act 1990 to provide a statutory power for senior courts to make declarations of inconsistency under the Bill of Rights Act, and for Parliament to respond.

A declaration of inconsistency is a formal statement issued by a court as a remedy. A declaration of inconsistency does not have the effect of invalidating or changing legislation and Parliament is under no obligation to respond to a declaration of inconsistency. However, it is a firm and solemn indication from the Courts to Parliament that the legislation in question breaches the Bill of Rights Act in a way that cannot be justified. It would be the only formal remedy available for when Parliament fails to legislate consistently with the Bill of Rights. 

The Government's commitment to legislate for declarations is unprecedented in New Zealand and is a divergence from the previous Attorney-General's repeated decision to appeal the declarations made by the High Court and Court of Appeal in Taylor

Importantly, the Cabinet proposal will also include a requirement for Parliament to respond to declarations made by the courts. A declaration would trigger reconsideration of the issue by Parliament, although would not extend to striking down the inconsistent law. This assurance allays a previously held fear that even if Taylor is successful, Parliament could ignore any declarations made by the Courts, rendering them meaningless. 

It is significant that Cabinet's proposal indicates Parliament will revisit the inconsistent legislation, thereby building a system of Parliamentary accountability when declarations are made. At the very least, this process is likely to draw the public's attention to any rights breaches, and require the Government to justify its position, even if no reform is achieved by Parliament upon revisiting the legislation in breach.  

While this is a far cry from giving the Bill of Rights higher law status, the Government's proposed reform shows a genuine commitment to making itself accountable for breaches of the Bill of Rights. That commitment can only be a positive step in the right direction.

Taylor v Attorney-General

Taylor v Attorney-General is one of many cases that has found its way to the courts to challenge a blanket ban on prisoner voting that the National government implemented in 2010. 

Arthur Taylor, a prisoner and prison rights advocate, brought the proceedings to challenge the ban, arguing that the blanket ban is contrary to the New Zealand Bill of Rights Act 1990, which preserves electoral rights for New Zealand citizens aged 18 years and over. Given the constitutional importance of the proceedings, the Human Rights Commission joined as interveners.

The Crown (for the most part) agrees with Mr Taylor, accepting that the blanket ban breaches the Bill of Rights and that the ban cannot be justified in a free and democratic society. 

The disagreement between the litigants lies in how the courts can, and ought, to respond to Parliament making law that breaches fundamental rights. Both the High Court and Court of Appeal made formal declarations of inconsistency, outlining that the blanket ban legislation breached fundamental rights in the Bill of Rights. 

The Crown disagrees that the wording of the Bill of Rights permits the Courts to make declarations of inconsistency. Given there is no express power in the Bill of Rights to make such declarations (this can be contrasted with the Human Rights Act), the Crown argued that such a remedy cannot be read into the Act.

In the news

Insurance contract law review: terms of reference announced

On 6 March 2018, the Commerce and Consumer Affairs Minister, Hon Kris Faafoi, announced a review of New Zealand's insurance contract law and released the Review's terms of reference.

The Review aims to modernise New Zealand's insurance contract law, which is outdated and fragmented across six separate Acts, and consolidate it into one Act. In his press release, Minister Faafoi said, "…there are significant problems with New Zealand's insurance contract law which are undermining the effectiveness of our insurance markets and impacting those who do not receive the support they anticipated from their insurance policies."

The key issues that the Review will consider are the lack of conduct regulation of insurers and intermediaries and disclosure obligations on policyholders. This follows an indication from the International Monetary Fund that New Zealand has significant gaps in its framework for insurance conduct regulation. In relation to policyholders' disclosure obligations, the Minister has commented that in some cases, they are too "onerous" and that the consequences for non-compliance are accordingly unfair.

The Ministry of Business, Innovation, and Employment (MBIE) will lead the review and examine the following issues:

  • disclosure obligations for policyholders and remedies for non-disclosure;
  • technical issues as identified by the Law Commission and industry;
  • gaps in regulation of insurers' and intermediaries' conduct;
  • the scope of the terms defined to be not "unfair contract terms" under the Fair Trading Act 1986; and
  • the ability of consumers to find and compare insurance prices and policies.

Following the release of the terms of reference, an Issues paper and Options paper are planned for release and public consultation in mid-2018 and late 2018 respectively. Any policy decisions following the review are expected to be made in mid-2019.

More information, including the terms of reference, can be found here.

FMA release refreshed corporate governance handbook

On 28 February, the Financial Markets Authority (FMA) published its refreshed Corporate Governance Handbook 2018.

The Handbook, first published in 2004 and regularly updated since, serves as a guide for directors, executives, and advisers of listed and non-listed companies to apply corporate governance principles to their particular entity.

The Handbook sets out eight principles that directors and executives should strive to apply and report on to their investors, shareholders, and stakeholders, which range from observing the highest ethical standards, transparent directors' and executives' remuneration, to shareholder relations and interests, do not impose new legal obligations on companies and reporting against them is voluntary.

Importantly, the 2018 iteration of the Handbook refocuses its content on non-listed companies and entities only. This is because the FMA now view the updated NZX Corporate Governance Code 2017 as the primary guidance on corporate governance practices for NZX listed companies and the refocus is intended to remove unnecessary overlap with the NZX Code.

The FMA have also updated the Handbook in a number of places, including non-financial reporting, environmental and social governance reporting, guidelines on auditor independence and audit committees, transparency remuneration disclosures, and board composition. The changes aim to align the Handbook with corporate governance developments in New Zealand and globally.

The FMA Director of Strategy and Risk, Simone Robbers, has commented, "Adopting the principles in the handbook will provide companies and businesses with a solid base for future growth, value creation, investor confidence and long-term sustainability.”

The 2018 edition of the Handbook can accessed here.

Unlocking Commercial Opportunities from Intelligent Transport Systems

In January this year, the Intelligent Transport Advisory Group released a Report on unlocking commercial opportunities from intelligent transport systems, which suggests that there is a multibillion-dollar opportunity for New Zealand in this sector. New Zealand is touted as a providing a good environment for the growing industry due to our reputation for testing new technologies, established reputation as a clean, green and safe country and the emergent high tech manufacturing sector. Intelligent Transport Systems ( ITS) refers to new technologies associated with vehicles on land, in the air and at sea, as well as the infrastructure that supports these vehicles and the operating systems that run them. ITS technologies are used in a range of industries, not limited to transportation and logistics but also agriculture, food processing and tourism. 

The Report calls for investment in education and training for ITS, the development of a cohesive government strategy to encourage innovation and growth in the ITS industry and ensuring that regulators have the resources that they require. Transport Minister Phil Twyford stated, "This is an exciting time for transport and Technology. Intelligent Transport Systems have the potential to not only make transport more efficient, better for the environment and safer, we now know they can make a valuable contribution to New Zealand's economy".

The Report can be found here.

Public media advisory group established

On 25 February, Broadcasting, Communications and Digital Media Minister Clare Curran announced the establishment of a four-member ministerial advisory group (Group) to investigate the establishment of a Public Media Funding Commission (Commission). The Group consists of Michael Stiassny (as Chair), Sandra Beatie, Josh Easby and Irene Gardiner.

The Group's role is to strengthen the contribution of both private and public media to supporting an informed democracy and to provide advice on the functions, role and scope of a potential Commission, and on alternatives to it. Minister Curran will report the Group's findings to Cabinet in mid-2018.

The Commission is intended to be an independent and non-political voice for media organisations advising Parliament, government and the public on the state of New Zealand's media. The Commission would also provide an authoritative view on the levels and allocation of funding necessary for the sustainability of New Zealand's public media.

This Commission was a key component of the policies announced by the Labour Party before the Election. Minister Curran has said that, "I believe a well-resourced public media is necessary to tell our stories and inform our democracy and I want to be sure we have the right framework for a resilient and sustainable New Zealand broadcasting system."

The Cabinet paper titled ‘Ministerial Advisory Group: Allocation of funding and role of a Public Media Funding Commission’ can be found here.

The Terms of Reference can be found here. The Minister's press release can be found here.

Treasury releases He Puna Hao Patiki: 2018 Investment Statement

On 20 March, Treasury announced the release of He Puna Hao Patiki, the 2018 Investment Statement. Treasury is required under the Public Finance Act to deliver an investment statement every four years to analyse the Government's management of assets and liabilities, and to hold the Government to account in its delivery of public services.

The 2018 Statement sets out that, in 2017, the Government managed $314 billion in assets and $197 billion in liabilities. The difference between assets and liabilities resulted in a net worth of NZ $24,000 for each person in New Zealand.

The Statement describes that this is a 'healthy' state for New Zealand's balance sheet. The Statement also indicates that New Zealand's public finances are resilient in the face of unexpected 'shocks', such as natural disasters, outbreaks of disease, and financial crises, in the short term; and demographic, climate and technological change, in the longer term.

He Puna Hao Patiki reflects the wider Living Standards Framework in how it aims to expand the focus of economic capital to include natural, human, social and financial/physical capital. Going forward, Treasury intends to identify indicators of asset performance that can demonstrate the link to all four capitals, thereby expanding the analysis of the balance sheet to include the value of non-financial resources. He Puna Hao Patiki will be considered by the Government in policy development and resource allocation. 

Further information on He Puna Hao Patiki can be found here.

National hui on Crown/Māori relations to start in April

Minister for Crown/Māori Relations Hon Kelvin Davis is encouraging people to attend hui around the country to have their say on the direction and priorities of the new Crown/Māori Relations portfolio. In his press release the Minister said “[b]efore finalising the scope and priorities of the Crown/Māori portfolio – exactly how the portfolio is going to foster a healthier relationship between the Crown and Māori – I want to listen widely, and hear ideas from across New Zealand.”

The Government's initial objectives in establishing the portfolio is to focus on the health of the Crown/Māori relationship, in order to improve outcomes for Māori and for New Zealand more generally, as well as to ensure that the two parties meet their respective Treaty obligations.

The proposed priorities of the portfolio include:

  • ensuring Treaty settlement obligations are honoured;
  • finding opportunities for active partnerships between the Crown and Māori;
  • supporting Māori capability and capacity to deal with government;
  • measuring the health of the Crown/Māori relationship over time; and
  • assisting government to better engage with Māori on matters of importance and respond to Māori issues.

The first hui will be held in Kaitaia in early April, with hui around the country being held shortly after. There is also an opportunity to provide online feedback before 30 May.

More information on attending a hui or providing online feedback can be found here.

Policy Targets Agreement signed

On 27 March, the incoming Governor of the Reserve Bank, Adrian Orr, and the Minister of Finance, Hon Grant Robertson, signed a new Policy Targets Agreement (PTA). The PTA is a public contract with price stability as its objective, negotiated between the Government and the Reserve Bank and signed under the existing provisions of the Reserve Bank Act 1989.

In addition to the existing requirement to consider price stability, the new PTA sets out an employment objective, which requires that monetary policy be directed at supporting maximum sustainable employment. The introduction of this dual mandate reflects changes to the New Zealand economy and to monetary practices since the Reserve Bank Act was first enacted almost 30 years ago. The Reserve Bank will be required to balance considerations around employment outcomes with the pursuit of price stability in determining policy where the two objectives are not consistent.

The Bill, which is expected to be introduced to Parliament in next few months, will establish a committee for monetary policy decisions (MPC). Under the current Act, the Reserve Bank Governor has sole legal responsibility for monetary policy decisions. However, the Reserve Bank's internal practices have already adapted to reflect the changes proposed in the Bill (by way of instigating an informal committee to consider such decisions), so the Bill will formalise this practice.

In response to questions, the Minister noted that one of the benefits of moving away from a sole membership MPC to a committee decision-making body is that the committee is likely to deliver better-quality decisions on average over time, by harnessing a broad range of perspectives while guarding against the risk of extreme preferences. It also means that the MPC will be collectively responsible for making monetary policy decisions and strategy, including about the Official Cash Rate.

Adrian Orr has been the Chief Executive Officer of the New Zealand Superannuation Fund since 2007. He has also held roles as Deputy Governor and Head of Financial Stability at the Reserve Bank, and as Chief Economist at Westpac New Zealand.

FMA guidance on fair dealing in advertising released

On 15 March, the Financial Markets Authority (FMA) published guidance on fair dealing and advertising and communications for licensed crowdfunding services, peer-to-peer lenders and the companies that offer financial products on these platforms. This guidance follows a review by the FMA of the how service providers and the companies that use them advertise their businesses, in particular, whether promotional material met the FMA's "fair dealing" expectations. The FMA noted that this review was not brought about by complaints; rather it reflects the FMA's view that "this sector is a newly licensed population and it is prudent for the FMA to examine how these services are marketed".

The guidance has a relatively wide target audience. It is primarily written for licensed crowdfunding and peer-to-peer lending platforms, and companies that offer financial products through these platforms; however, the FMA also suggests that the guidance is useful for anyone else who is promoting, or informing customers and the public about, licensed crowdfunding or peer-to-peer products or services. This could include market commentators, investment bankers and lawyers.

In the guidance, the FMA sets out the standard it expects for advertisements and communications by the sector. The main message is that the sector should take care that it communicates relevant information clearly to the consumer. This includes considerations such as ensuring that the warnings, disclaimers and qualifications are sufficiently prominent so as to be effective; taking care that sufficiently comparable metrics are used when comparing products or services; substantiating claims; and considering the audience to which the product is being marketed, and modifying advertisements and communications accordingly.

The FMA's statement on the release of this guidance can be found here. The guidance itself can be found here.

Progress of legislation

New Bills

Administration of Justice (Reform of Contempt of Court) Bill
Type of Bill: Member's
Member in charge: Hon Chris Finlayson
This Bill seeks to legislate the law of contempt in New Zealand in one place, as it currently exists in a number of sources. As well as consolidating the law, the Bill introduces a number of new provisions. The Bill includes a new law prohibiting the media from publishing or reporting on an arrested person’s previous convictions and any concurrent charges. The Court would also have the power to postpone publication of other information if it is necessary to avoid a real risk of prejudice to a fair trial. This would include having the power to order an online content host to take down or disable public access to any specific information covered by the law.

The Bill would also introduce a mechanism for dealing with disruptive behaviour in the court that interrupts proceedings. This law would allow judges to deal with the immediate disruption by citing the person for disrupting the court and, if necessary, ordering the person to be taken into the court cells until the end of the day. The Bill would also make it an offence for a member of a jury to investigate or research information which he or she knows, or ought reasonably to know, is relevant to the case.  In addition, the Bill proposes abolishing the common law of contempt of scandalising the court. It would instead introduce an offence for anyone who publishes an untrue allegation or accusation against a judge or a court when there is a real risk that the publication could undermine public confidence in the judiciary or a court.

Appropriation (2016/17 Confirmation and Validation) Bill
Type of Bill: Government
Member in charge: Hon Grant Robertson
This Bill seeks to confirm and validate matters relating to Government spending in the 2016 / 17 financial year by confirming the Public Finance (Transfers Between Outputs) Order 2017, which was made under section 26A of the Public Finance Act 1989. The Bill would confirm the order in council that directs the transfer of amounts between output expense appropriations and the expenses incurred in excess of existing appropriations. The Bill would also further validate unappropriated expenses and capital expenditure incurred.

Commerce Amendment Bill
Type of Bill: Government
Member in charge: Hon Kris Faafoi
This Bill aims to amend the Commerce Act 1986 to introduce a competition studies regime; to improve the effectiveness of the regulatory regime for airports under Part 4 of the Act; and to update the alternative enforcement mechanisms available to the Commerce Commission. The Bill would empower the Commission to undertake studies into the competitive conditions relating to goods or services in a particular sector if it is in the public interest. The Commission may commence a study on its own initiative or at the direction of the Minister of Commerce and Consumer Affairs.

The Bill would also make improvements to the regulatory regime for airports under Part 4 of the Act. Currently, the airports regulated under Part 4 are subject only to information disclosure regulation, but there is no specified process for imposing additional regulation if information disclosure regulation is found to be ineffective. The Bill would clarify that the Commission’s summary and analysis reports can comment on whether information disclosure is effective for a regulated supplier, introduce a truncated inquiry process to investigate the need for further regulation of already-regulated airports, and clarify that, following such an inquiry, changes to the type of regulation applying to the airports can be made through an Order in Council.

The Bill also seeks to introduce an enforceable undertakings regime into the Act. These undertakings will be available for the Commission to accept in relation to the enforcement of the Act. The enforceable undertakings regime will complement existing arrangements in relation to settlements. If an enforceable undertaking is breached, the High Court may order compliance with the order or impose a financial penalty. The Bill also repeals the existing cease and desist regime.

Commerce (Criminalisation of Cartels) Amendment Bill
Type of Bill: Government
Member in charge: Hon Kris Faafoi
This Bill aims to amend the Commerce Act 1986 to introduce a criminal offence for cartel conduct. Cartel conduct is already prohibited by the Commerce Act and engaging in it results in civil pecuniary penalties. The objectives of the Bill are to promote the detection and deterrence of cartels and to strengthen cartel enforcement by the Commerce Commission while bringing New Zealand's jurisdiction in line with overseas jurisdictions. Under the Bill, any person who intentionally engages in cartel behaviour would be liable to 7 years' imprisonment in the case of an individual or $10 million in the case of a company or a higher penalty based on commercial gain from the breach or the person's turnover. The existing exceptions and exemptions under the Commerce Act would be extended to persons who face criminal prosecution for engaging in cartel conduct. To allow businesses to learn from the civil regime for cartel conduct which came into effect in August 2017, the criminal offences will come into force two years after the Bill receives Royal Assent.

Companies (Clarification of Dividend Rules in Companies) Amendment Bill
Type of Bill: Member's
Member in charge: Todd Muller
This Bill would amend the Companies Act 1993 to clarify dividend rules outlined in sections 36 and 53, where there is currently ambiguity in the ability of a company constitution to provide for "dry shares". This Bill would insert a new section 53(2A) to provide that a company constitution can exclude a certain class of shares from receiving dividends.

Coroners (Access to Body of Dead Person) Amendment Bill
Type of Bill: Government
Member in charge: Hon Andrew Little
This Bill aims to implement a recommendation of the Māori Affairs Committee Report Inquiry into whānau access to and management of tūpāpaku, to improve cultural considerations in the coronial system. The Bill would amend section 26 of the Coroners Act 2006 to require the coroner, when determining whether a person should be allowed to view, touch, or remain with or near the tūpāpaku (deceased), to consider tikanga Māori and the expectations of other cultures. Currently, the Act does not require coroners to take cultural considerations into account when making decisions under section 26, but they have discretion to do so.

Corrections Amendment Bill
Type of Bill: Government
Member in charge: Hon Kelvin Davis
This Bill would amend the Corrections Act 2004 to implement a number of discrete changes concerning the management of prisoners. These changes would include:

  • A segregation regime separate to the existing one that improves the management of prisoners at risk of self-harm.
  • A review process for decisions relating to the Mothers with Babies Unit.
  • Amending the definition of drug to include psychoactive substances, as defined by the Psychoactive Substances Act 2013. The Bill would make it a disciplinary offence to use them in prisons and allow testing procedures to be used to obtain evidence of their use.
  • Providing an authority for the Minister of Corrections to declare a Police jail, or parts of a Police jail, to be temporarily included in a corrections prison, operated by the department.
  • Allowing the use of imaging technology, subject to some privacy safeguards, to search prisoners, staff and visitors for contraband. These searches will take the place of mandated strip searches of prisoners.
  • Amending the 24-hour time limit on the application of mechanical restraints so it does not apply to prisoners who have been temporarily moved to hospital.
  • Changing disciplinary offence regimes, including making it a disciplinary offence for a prisoner to tattoo another prisoner, or to attempt to have contact with someone if that contact would breach an order or direction of any court.
  • Prohibit the use of chains and irons on prisoners to align the law with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

Crimes Amendment Bill
Type of Bill: Government
Member in charge: Hon Andrew Little
This Bill would repeal three provisions of the Crimes Act 1961. The first proposed change is the repeal of section 71(2), which provides immunity to spouses and civil union partners where they would otherwise be an accessory after the fact to an offence. The existing provision protects people who assist their spouses or civil union partners to avoid or escape arrest. The second proposed change is the repeal of section 123, which provides that it is an offence to publish blasphemous libel. The existing penalty for this offence is a maximum sentence of one year's imprisonment. The Amendment Bill observes that no person has been prosecuted for this offence since 1922, and conflicts with the Bill of Rights Act's protection of freedom of expression. The final proposed change is the repeal of section 162, which provides that no one is criminally responsible for the killing of another unless death occurs within a year and a day after the cause of death.

Crown Minerals Amendment Bill
Type of Bill: Government
Member in charge: Hon Megan Woods
This Bill would amend the Crown Minerals Act 1991 to update the mineral permitting regime administered by the Ministry of Business, Innovation, and Employment. The Bill would:

  • provide that minerals programmes are not legislative instruments for the purposes of the Legislation Act 2012 and will continue to not be drafted by the Parliamentary Counsel Office;
  • clarify that an extension of the duration of a permit cannot be denied as a result of a declaration under section 28A of the Act, which relates to specified land excluded from permits, but an extension to the land area of a permit can be denied as a result of a declaration;
  • clarify that an access arrangement is needed for access to Schedule 4 land for minimum impact activities;
  • clarify which Ministers enter into access arrangements in respect of Crown land and land in the common marine and coastal area;
  • allow for the delegation of the Minister’s powers to grant licences under the Mining Act 1971;
  • clarify the applicable royalty calculations for certain permits granted before February 2008; and
  • clarify the public notice and submissions process around changes to be made to a minerals programme that are consequential on changes made by the Bill.

Education Amendment Bill
Type of Bill: Government
Member in charge: Hon Chris Hipkins
This Bill proposes to amend the Education Act 1989 and the Education (Update) Amendment Act 2017 by making a number of significant reforms to the Education systems. The first is that the Bill intends to remove the partnership school model. This Bill would remove the ability for the Minister and sponsors to contract to establish partnership schools kura hourua (also known as charter schools). The Bill would provide transitional arrangements to allow time for negotiations about the future of those schools that are already operating. Secondly, the Bill would abolish national standards. These are standards set by the Minister that schools are required to report against. The Bill would also create a mandatory requirement for both a teaching staff and student to be members of University Councils. At present, universities are able to mandate the membership of councils, with the exception of mandatory ministerial representatives. The Bill also amends the Education Act to support the introduction of free tertiary education by creating an offence of making a false representation in an application for free tertiary education. The penalty for this offence is a fine of up to $5000. The Bill would also remove the requirement for some students to make statutory declarations that they have not previously accessed tertiary education above a certain level, in New Zealand or overseas. Lastly, the Bill would update the new reporting framework introduced by the Education (Update) Amendment Act 2017 by requiring School Boards to develop strategic plans at least once every three years and empowering School Boards of Trustees to ask the Secretary for Education to approve significant amendments to strategic plans at any time. The Bill would also make a number of minor technical amendments to the Education Act 1989, including the correction of cross-references.

Earthquake Commission Amendment Bill
Type of Bill: Government
Member in charge: Hon Megan Woods
This Bill seeks to amend the Earthquake Commission Act 1993 by simplifying the handling of claims for natural disaster damage, particularly when dealing with a large-scale natural disaster. The Bill would remove Earthquake Commission (EQC) cover for personal property so that the primary focus for the EQC is on housing repair and recovery. The monetary cap for residential building damage would increase from $100,000 to $150,000 (plus GST). The Bill would enable EQC to accept claims notified more than 3 months and less than 2 years after the natural disaster event. The Bill would also clarify when EQC may share claim-related information including; to facilitate settlement of natural disaster claims by EQC and private insurer; to protect the public interest including to support natural disaster preparedness, response and recovery; and to prevent or lessen a threat to public health or safety.

Education (Social Investment Funding and Abolition of Decile System) Amendment Bill
Type of Bill: Member's
Member in charge: Erica Stanford
This Bill would amend the Education Act 1989 to remove the decile system as a funding mechanism and replace it with a needs index which assesses a child’s likelihood of underachievement and target funding. The needs index would target funding for students who are at risk of not achieving NCEA Level 2. These indicators could be amended by the Minister through consultation with parents, the teaching profession and the education sector.

The Bill would also establish safeguards to protect the privacy of individual students, including those who are at risk of not achieving, and ensure their data is anonymised. It aims to amend the Official Information Act 1982 to ensure that student data is not subject to the Act. It would also require that the collection of data and calculation of the needs index comply with the Privacy Act 1993.

Electronic Compliance with Reporting Requirements Bill
Type of Bill: Member's
Member in charge: Adrian Rurawhe
This Bill aims to amend the Public Finance Act 1989 and the Crown Entities Act 2004 to enable public organisations to meet statutory reporting requirements in electronic form. It would achieve this by inserting a section in each Act that allows all requirements for the presentation and publication of documents in electronic form.

Employment (Pay Equity and Equal Pay) Bill
Type of Bill: Member's
Member in charge: Denise Lee
This Bill aims to prevent discrimination on the basis of sex for remuneration and other employment conditions. This Bill would do so by amending the Employment Relations Act 2000, and repeal the Equal Pay Act 1972 and the Government Service Equal Pay Act 1960. The Bill would distinguish between equal pay, unlawful discrimination on matters other than remuneration, and pay equity claims. The Bill sets out the processes for making and resolving each type of claim as follows:

  • equal pay claims are treated as claims for recovery of wages under section 131(1)(b) of the Employment Relations Act 2000;
  • unlawful discrimination (non-remuneration) claims are treated as claims of discrimination under section 103(1)(c) of the Employment Relations Act 2000; and
  • pay equity claims are made and resolved in accordance with subpart 3 of Part 2 of the Bill.

The Bill would provide employees with the right to make a pay equity claim where it relates to work predominantly performed by women and there are reasonable grounds to believe that the work has been historically undervalued and continues to be undervalued. If a claim has merit, the employer and employee would be required to enter into a pay equity bargaining process. The Bill would provide for a dispute resolution process based on the existing processes in the Employment Relations Act 2000. The Bill would also enable parties to apply to the Employment Relations Authority for a determination that fixes terms and conditions of employment if all other reasonable alternatives for settling the pay equity claim have been exhausted.

Fair Trading (Oppressive Contracts) Amendment Bill
Type of Bill: Member's
Member in charge: Duncan Webb
This Bill proposes to prohibit unfair contract terms, performance, and enforcement, and restrict the Limitation Act 2010. The Bill would achieve this by inserting express terms into the Fair Trading Act 1986 that prohibit a person from including unfair or oppressive terms into standard form contracts or attempting to enforce unfair terms. A new definition of oppressive would be inserted to mean harsh, unjustly burdensome, unconscionable, or in breach of reasonable standards of commercial practice. The Bill would also exclude a person in trade from relying on a limitation defence for a dispute about a consumer contract unless they:

  • knew or ought to have known the action in question might result in a claim; and
  • they gave the consumer six months' notice in writing that the period in which a claim could be filed was coming to an end.

Families Commission Act Repeal Bill
Type of Bill: Government
Member in charge: Hon Carmel Sepuloni
This Bill seeks to repeal the Families Commission Act 2003 and disestablish the Families Commission. Most of the Commission’s functions have already been transferred, through non-legislative measures, to the Ministry of Justice, the Ministry of Social Development, and the Social Investment Agency. On the commencement of this legislation, the Commission’s residual assets, liabilities, agreements, leases, license arrangements, and information would be transferred to the Ministry of Social Development. The Bill would not apply to individual employment agreements or appointments and all employment and appointment positions with the Commission would be dissolved.

Health and Safety at Work (Volunteer Associations) Amendment Bill
Type of Bill: Member's
Member in charge: Harete Hipango
This Bill would amend the Health and Safety at Work Act 2015 to allow volunteer associations that employ a person or persons for less than 100 hours per week to be excluded from the definition of a person conducting a business or undertaking (PCBU).

Health Practitioners Competence Assurance Amendment Bill
Type of Bill: Government
Member in charge: Hon David Clark
This Bill would amend the Health Practitioners Competence Assurance Act 2003 by implementing recommendations that arose from reviews undertaken in 2009 and 2012. The Bill seeks to clarify the Act's interpretation and improve its operation in order to ensure that health practitioners are competent and fit to practice.

In particular, the Bill:

  • clarifies that responsible authorities can receive and act on information from members of the public about the practice, conduct, or competence of health practitioners;
  • makes information about orders made by an authority under the Act more accessible;
  • in respect of professional misconduct, would allow responsible authorities to delegate their power to appoint a professional conduct committee to a committee, and give responsible authorities discretion to refer notices of minor offences to a professional conduct committee;
  • allows the chairperson of the Health Practitioners Disciplinary Tribunal to issue an order for the non-publication of names at any time before a charge is heard;
  • allows a responsible authority to order the suspension of a practitioner’s practising certificate or registration where the practitioner is involved in a criminal proceeding or an investigation and the authority believes the practitioner’s alleged conduct poses a risk of serious harm to the public; and
  • empowers the Governor-General, on the recommendation of the Minister of Health, the power by Order in Council to amalgamate existing authorities when it is in the public interest.

Health (National Cervical Screening Programme) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Julie Anne Genter
This Bill would amend Part 4A of the Health Act 1956 to enable National Cervical Screening Programme (NCSP) register staff to directly access information from the register for the purposes of conducting their work. The NCSP manager would retain administrative control over granting secure access to the NCSP register and access to the register will remain an auditable activity. It would also amend the offence provisions that apply to the disclosure of information from the NCSP register. A new offence would be created for amending the register without the authorisation of the NCSP manager.

Land Transport Management (Regional Fuel Tax) Amendment Bill
Type of Bill: Government
Member in charge: Hon Phil Twyford
This Bill proposes to introduce a mechanism under which regional fuel taxes can be established by inserting a new subpart 3 into Part 2 of the Land Transport Management Act 2003. The process would include a regional council making a proposal that sets out the proposed tax rate, the duration of the tax, the transport programme and projects that the tax will fund, how the proposal contributes to the relevant regional transport plan, the relevant Government Policy Statement on land transport, and any other relevant documents specified by the Minister of Finance and the Minister of Transport that sets out transport priorities for the region. The Ministers would then recommend an order in council to give effect to the tax. The New Zealand Transport Agency would have the ultimate enforcement and monitoring function of the implementation of the fuel tax.

The Bill would implement a number of restrictions on the granting of a fuel tax including:

  • that it would apply to petrol and diesel but not to compressed natural gas and liquefied petroleum gas;
  • being collected at the distribution level;
  • being used toward the funding of capital expenditure, associated debt repayment, and operational expenditure when it is associated with the delivery of a package or programme of projects;
  • having a maximum rate of 10 cents per litre of fuel and a maximum initial duration of 10 years;
  • being available initially only to the Auckland region and to the other regions from 1 January 2021; and
  • allowing for rebates consistent with those available for fuel excise duty for off-road use of fuel and be subject to GST.

Litter (Increased Infringement Fee) Amendment Bill
Type of Bill: Member's
Member in charge: Scott Simpson
This Bill would amend the Litter Act 1979 to increase the maximum fine for an infringement offence issued by a territorial authority from $400 to $1,000.

Local Electoral Matters Bill
Type of Bill: Government
Member in charge: Hon Nanaia Mahuta
This omnibus Bill seeks to amend the Local Electoral Act 2001 and the Electoral Act 1993 to allow local electoral arrangements to adapt to certain circumstances. The Bill would amend the Local Electoral Act 2001 to support the conduct of trials of novel voting methods. New voting methods may be trialled by certain classes of people, for example, people living in set areas, residing overseas or in remote locations, or having a relevant disability. It would also amend the Electoral Act 1993 to enable the design of future voting methods to utilise date of birth information and to ensure that analysis of voter participation in local elections (including trials) can utilise age group information.

Local Government (Community Well-being) Amendment Bill
Type of Bill: Government
Member in charge: Hon Nanaia Mahuta
This Bill would amend the Local Government Act 2002 to add a purpose of local government to be “to promote the social, economic, environmental, and cultural well-being of communities”. The Bill would also restore territorial authorities’ power to collect development contributions for any public amenities needed because of development. This is proposed to assist in the provision of facilities such as sports grounds, swimming pools, and libraries. The Bill would make a minor modification to the development contributions power to clarify that advances of financial assistance from the New Zealand Transport Agency that are recoverable do not affect the power of territorial authorities to collect development contributions for projects financed using that mechanism.

Oaths and Declarations (Members of Parliament) Amendment Bill
Type of Bill: Member's
Member in charge: Anahila Kanongata'a-Suisuiki
This Bill seeks to amend the Oaths and Declarations Act 1957 to allow members of Parliament to make their oaths or affirmations of allegiance in languages other than English and Te Reo. This Bill would enable the Governor-General to prescribe equivalents in any language of the oaths and declarations taken by members of Parliament, and ensure that they are legally equivalent in effect to the English versions.

Oranga Tamariki (Parent's and Guardian's Responsibility) Amendment Bill
Type of Bill: Member's
Member in charge: Barbara Kuriger
This Bill would amend the Oranga Tamariki Act 1989 to give Youth Court Judges the ability to impose conditions on parents or guardians when their child is already in the jurisdiction of the Youth Court. Failure to comply with these orders would be punishable by a fine not exceeding $5000 or a term of imprisonment not exceeding 12 months. Youth Court judges would be able to require a young person's parent or guardian reside at a nominated address with the child or young person, or observe a specified curfew. They would be able to prohibit them from consuming alcohol and drugs or associating with any specified person. The Judge would be able to make any order that the Judge considers necessary to ensure the ongoing safety of the young person.

Patents (Advancement Patents) Amendment Bill
Type of Bill: Member's
Member in charge: Parmjeet Parmar
This Bill would amend the Patents Act 2013 to provide intellectual property protection rights to advancements that are novel, useful, and non-obvious that may or may not qualify as an invention for a standard patent. This would be achieved by introducing a second-tier patent system, known as an advancement patent. A new section 7A would be inserted into the Act to define an advancement step as something that is distinctly different from what was known before the advancement and makes a useful improvement to the working of the proposed patented thing. The advancement step must be made by someone skilled in the field but with only common general knowledge of the art. A thing would be a patentable advancement where it is novel, includes an advancement step, but does not meet the current threshold for an inventive step. The Bill would also provide a scheme for examination of provisional advancement patents.

Privacy Bill
Type of Bill: Government
Member in Charge: Hon Andrew Little
This Bill repeals and replaces the Privacy Act 1993 to reflect changing technologies. Its key purpose is to promote people's confidence that their personal information is secure and will be treated accordingly. The Bill would retain the Act's 12 information privacy principles and complaints system. The Bill would introduce mandatory reporting of harmful privacy breaches to the Privacy Commissioner by widening the Commissioner's powers to include:

  • Issuing compliance notices that require an agency to do something, or stop doing something, in order to comply with privacy law. The Human Rights Review Tribunal would be able to enforce compliance notices and hear appeals.
  • Making binding decisions on complaints relating to access to information (instead of the Human Rights Review Tribunal). The Commissioner’s decisions would be able to be appealed to the Tribunal.
  • Strengthening existing powers of investigation by allowing the Commissioner to shorten the period within which an agency must comply, and increasing the penalty for non-compliance.

New Zealand agencies would be required to take reasonable steps to ensure that personal information disclosed overseas will be subject to acceptable privacy standards. The Bill also clarifies the application of our law when a New Zealand agency engages an overseas service provider. The Bill would introduce a new criminal offence of misleading an agency in a way that affects someone else’s information and of knowingly destroying documents containing personal information where a request has been made for it. The penalty would be a fine not exceeding $10,000.

Residential Tenancies (Prohibiting Letting Fees) Amendment Bill
Type of Bill: Government
Member in charge: Hon Phil Twyford
This Bill would amend the Residential Tenancies Act 1986 to prohibit the charging of letting fees for services provided in respect of tenancies. The purpose of this amendment is to ensure that the costs associated with letting a property rest with the party that ultimately receives the financial benefit from the tenancy, and to reduce the upfront costs that tenants commonly face when entering a new tenancy agreement. To achieve this, the Bill prohibits the charging of a letting fee or any other fee to a tenant, by any person in relation to the:

  • granting, continuance, extension, variation, or renewal of any tenancy agreement;
  • assignment of a tenant’s interest under any tenancy agreement; or
  • subletting of the whole or any part of the premises by a tenant.

The Bill would create a new unlawful act of charging a tenant a letting fee, with a maximum level of exemplary damages of $1,000. The Bill would also limit the Tenancy Tribunal’s authority, in that it will not have jurisdiction to consent to a person requiring a tenant to pay a letting fee.

Sale and Supply of Alcohol (Renewal of Licences) Amendment Bill (No 2)
Type of Bill: Member
Member in charge: Louisa Wall
This Bill replaces a previous Bill that contained a drafting error. This Bill would amend the Sale and Supply of Alcohol Act 2012 to provide that where a local alcohol policy is in place under the Act, the renewal of the licence must be consistent with the provisions of that local alcohol policy.

At present, the Act deals with the renewal of existing licences through a different process to the application for new licences. While new licences are currently granted within the context of relevant local alcohol policies, licence renewals are specifically required to not consider relevant local alcohol policies. This Bill would replace that requirement with a discretionary ability for a licensing authority or licensing committee to refuse to renew a licence if the renewal of the licence or the consequences of its renewal would be inconsistent with any relevant local alcohol policy.

Social Assistance (Residency Qualification) Legislation Bill
Type of Bill: Government
Member in charge: Hon Carmel Sepuloni
This omnibus Bill seeks to change the residential qualifications for New Zealand superannuation and the veteran’s pension by amending the Superannuation and Retirement Income Act 2001 and the Veterans’ Support Act 2014. It would do this by allowing a person to access superannuation and veteran's pension if they have residence and presence in New Zealand, the Cook Islands, Niue, or Tokelau. At present, to qualify, a person must have 5 years’ residence and presence in New Zealand over the age of 50 years. This requirement would be changed to instead allow them to have residence and presence in New Zealand, the Cook Islands, Niue, or Tokelau, or any combination of those countries and that territory.

State Sector and Crown Entities Reform Bill
Type of Bill: Government
Member in charge: Hon Chris Hipkins
This omnibus Bill that seeks to amend the Crown Entities Act 2004 and the State Sector Act 1998. The Bill aims to implement consistent regulation of conduct and remuneration of employees at the most senior level and a more consistent approach to the State Services Commissioner’s investigatory and inquiry powers when dealing with agencies in the State Services outside the Public Service. It does this by:

  • Requiring boards of statutory entities to obtain the consent of the State Services Commissioner before finalising the terms and conditions of a chief executive. This amendment will bring statutory entities in line with crown entities in the Health and Tertiary Education sectors. The Bill would also introduce a renewable fixed term of appointment of not more than 5 years, for the chief executive of a statutory entity. The provision will apply only to appointments and reappointments made after it comes into force.
  • Empowering the Commissioner to apply a code of conduct to an agency's board and board members. This power would apply to the same range of agencies that are currently subject to the Commissioner’s mandate under section 57 of the State Sector Act 1988. The Bill would also implement a single investigation package aligned with the Inquires Act 2013 regime. Currently the Commissioner's power of Inquiry is sourced in both the State Sector Act 1988 and the Commissions of Inquiry Act 1908.
Bills awaiting first reading

Administration of Justice (Reform of Contempt of Court) Bill
Autonomous Sanctions Bill
Commerce Amendment Bill
Companies (Clarification of Dividend Rules in Companies) Amendment Bill
Coroners (Access to Body of Dead Person) Amendment Bill
Crimes (Offence of Blasphemous Libel) Amendment Bill
Crown Minerals Amendment Bill
Education (Public Good not Profit from Charter Schools) Amendment Bill
Education (Social Investment Funding and Abolition of Decile System) Amendment Bill
Election Access Fund Bill
Electronic Compliance with Reporting Requirements Bill
Employment Relations (Restoring Kiwis’ Right to a Break at Work) Amendment Bill
Fair Trading (Oppressive Contracts) Amendment Bill
Health and Safety at Work (Volunteer Associations) Amendment Bill
KiwiSaver (Foster Parents Opting in for Children in their Care) Amendment Bill
Litter (Increased Infringement Fee) Amendment Bill
Local Electoral Matters Bill
Local Government (Community Well-being) Amendment Bill
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Oaths and Declarations (Members of Parliament) Amendment Bill
Patents (Advancement Patents) Amendment Bill
Privacy Bill
Sentencing (Domestic Violence) Amendment Bill

Bills defeated

Accident Compensation (Recent Migrants and Returning New Zealanders) Amendment Bill
Member in charge: Melissa Lee
Ayes 57: New Zealand National 56; ACT New Zealand 1.
Noes 63: New Zealand Labour 46; New Zealand First 9; Green Party 8.

Crimes (Increased Penalty for Providing Explosive to Commit Crime) Amendment Bill
Member in charge: Alastair Scott
Ayes 56: New Zealand National 56.
Noes 64: New Zealand Labour 46; New Zealand First 9; Green Party 8; ACT New Zealand 1.

Employment (Pay Equity and Equal Pay) Bill
Member in charge: Denise Lee
Ayes 57: New Zealand National 56; ACT New Zealand 1.
Noes 63: New Zealand Labour 46; New Zealand First 9; Green Party 8.

Local Government (Freedom of Access) Amendment Bill
Member in charge: Jonathan Young
Ayes 56: New Zealand National 56.
Noes 64: New Zealand Labour 46; New Zealand First 9; Green Party 8; ACT New Zealand 1.

Oranga Tamariki (Parent's and Guardian's Responsibility) Amendment Bill
Member in charge: Barbara Kuriger
Ayes 57: New Zealand National 56; ACT New Zealand 1.
Noes 63: New Zealand Labour 46; New Zealand First 9; Green Party 8.

Social Security (Stopping Benefit Payments for Offenders who Repeatedly Fail to Comply with Community Sentences) Amendment Bill
Member in charge: Brett Hudson
Ayes 56: New Zealand National 56.
Noes 64: New Zealand Labour 46; New Zealand First 9; Green Party 8; ACT New Zealand 1.

Bills before Select Committee

Submissions open

Bills

Select Committee

Closing date for Submissions (2018)

Crimes Amendment Bill

Justice

10 May

Corrections Amendment Bill

Justice

17 May

Earthquake Commission Amendment Bill

Finance and Expenditure

31 May

Education Amendment Bill

Education and Workforce

13 April

Education (National Education and Learning Priorities) Amendment Bill

Education and Workforce

13 April

Education (Protecting Teacher Title) Amendment Bill

Education and Workforce

13 April

Employment Relations (Triangular Employment) Amendment Bill

Education and Workforce

11 May

Health (National Cervical Screening Programme) Amendment Bill

Health

3 May

KiwiFund Bill

Economic Development, Science and Innovation

13 April

Land Transport Management (Regional Fuel Tax) Amendment Bill

Finance and Expenditure

20 April

Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill

Justice

4 May

Residential Tenancies (Prohibiting Letting Fees) Amendment Bill

Social Services and Community

Not yet called

Sale and Supply of Alcohol (Renewal of Licences) Amendment Bill (No 2)

Governance and Administration

25 April

Social Assistance (Residency Qualification) Legislation Bill

Social Services and Community

Not yet called

State Sector and Crown Entities Reform Bill

Governance and Administration

11 April

Te Pire Haeata ki Parihaka/Parihaka Reconciliation Bill

Māori Affairs

7 May

Submissions closed

Bills

Select Committee

Report due (2018)

Births, Deaths, Marriages, and Relationships Registration Bill

Governance and Administration

5 June

Child Poverty Reduction Bill

Social Services and Community

13 August

Commerce (Criminalisation of Cartels) Amendment Bill

Economic Development, Science and Innovation

20 August

Conservation (Infringement System) Bill

Environment

14 August

Consumers’ Right to Know (Country of Origin of Food) Bill

Primary Production

29 May

Education (Teaching Council of Aotearoa) Amendment Bill

Education and Workforce

1 August

Electoral (Integrity) Amendment Bill

Justice

30 July

Employment Relations Amendment Bill

Education and Workforce

1 August

End of Life Choice Bill

Justice

27 September

Families Commission Act Repeal Bill

Social Services and Community

20 August

Financial Services Legislation Amendment Bill

Economic Development, Science and Innovation

7 June

Friendly Societies and Credit Unions (Regulatory Improvements) Amendment Bill

Finance and Expenditure

8 May

Health Practitioners Competence Assurance Amendment Bill

Health

20 August

Legislation Bill

Justice

5 June

Bills awaiting second reading

Arbitration Amendment Bill as reported by the Justice committee
Brokering (Weapons and Related Items) Controls Bill as reported by the Foreign Affairs, Defence and Trade Committee
Court Matters Bill
Domestic Violence — Victims' Protection Bill
Family and Whānau Violence Legislation Bill
Health (Fluoridation of Drinking Water) Amendment Bill
Kermadec Ocean Sanctuary Bill
Marriage (Court Consent to Marriage of Minors) Amendment Bill
Ngāi Tai ki Tāmaki Claims Settlement Bill as reported by the Māori Affairs Committee
Ngāi Te Rangi and Ngā Pōtiki Claims Settlement Bill
Ngāti Tamaoho Claims Settlement Bill as reported by the Māori Affairs Committee
Social Security Legislation Rewrite Bill
Tauranga Moana Iwi Collective Redress and Ngā Hapū o Ngāti Ranginui Claims Settlement Bill
Telecommunications (New Regulatory Framework) Amendment Bill
Tribunals Powers and Procedures Legislation Bill

Bills awaiting third reading

Appropriation (2016/17 Confirmation and Validation) Bill
Heretaunga Tamatea Claims Settlement Bill
Local Government Act 2002 Amendment Bill (No 2)
New Plymouth District Council (Waitara Lands) Bill

Acts assented

Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018
This Act provides an expungement scheme for convictions of historical homosexual offences. Under the Act, a person is eligible for an expungement of their conviction if their conduct does not constitute an offence under the current law. An expungement can be made by an application to the Secretary for Justice and where a convicted person is deceased, the Act allows for any of the following to make an application for expungement on the deceased’s behalf:

  • The executor, administrator, or trustee of, acting on behalf of, the estate of the convicted person.
  • A spouse, civil union partner, or de facto partner, of the convicted person.
  • A parent, sibling, or child, of the convicted person.
  • A person who makes a request under particular provisions in the Act.

If an application is approved, the convicted person’s criminal record will be amended to ensure the conviction does not appear on a criminal history check for any purpose in New Zealand and the person will be entitled to declare that they have no conviction. An official record of the expunged conviction will be retained but an expunged person would be treated if the person had not been convicted. This Act excludes any potential entitlement to compensation for the effects of conviction.

Customs and Excise Act 2018
This Act repeals and replaces the Custom and Excuse Act 1996 and implements a number of changes to New Zealand's customs regime. Among those changes are:

  • Standardised process for disclosure of information to other government agencies (and the private sector) based on written, published agreements. Specific protections are provided for sensitive personal and commercial information, for example, customs officers must suspect offending before they can search a person’s cell phone or electronic device.
  • Enable a provisional value for imported goods, meaning importers who bring goods into the country without knowing their value prior to entry to declare a provisional value for them, and provide Customs with the final value once it is known.
  • Importers will be able to seek from customs a binding valuation rulings to get certainty as to how much duty they will owe on goods they want to bring into the country.
  • To improve compliance with Customs, businesses are permitted to store their records in the cloud or offshore, in line with modern business practice.
  • A new sanctions regime which includes reducing maximum administrative penalties to recognise lower levels of offending, creating an infringement notice scheme for minor offending to replace petty offences and increase fairness and transparency, and introducing the ability to suspend or cancel the registration of a Joint Border Management System (JBMS) user who persistently makes errors in entering information into JBMS.

Dairy Industry Restructuring Amendment Act 2018
This Act amends the Dairy Industry Restructuring Act 2001 by preventing the scheduled expiry of subparts 5 and 5A of Part 2 of the Act, which regulate the activities of Fonterra. Subpart 5 promotes the efficient operation of dairy markets in New Zealand, and Subpart 5A provides for the monitoring of Fonterra's farm gate milk price. A statutorily mandated Commerce Commission report found that competition in the New Zealand dairy market was insufficient to justify removing them. Accordingly, the Act prevents parts of Subpart 5, and all of Subpart 5A, from expiring in relation to the South Island; and removes the automatic expiry provisions, the market share thresholds that would trigger them, and the consequential requirement for a review of the state of competition.

Education (Tertiary Education and Other Matters) Amendment Act 2018
This Act amends the Education Act 1989 to increase funding flexibility in the tertiary education system, change the monitoring requirements of Tertiary Education Organisations (TEO). The Act clarifies that the responsible Minister can make changes to a TEOs funding mechanism and place new conditions on funding when reasonably necessary. These amendments will enable the Minister to shift funding across the tertiary education sector as required. The Act also inserts a broad principle of consistent funding into the Act; allows a wānanga to apply to use a protected term in its title (such as university); and align refund entitlements for domestic students enrolled in a short programme at a private training establishment (PTE) with those of international students.

The Act changes a TEOs monitoring requirements by allowing the Tertiary Education Commission (TEC) to set specific conditions on TEO funding; require tertiary education institutions (TEIs) to maintain accurate records on their use of government funding; and to make these records available for viewing by the TEC. The Act also makes a number of discrete amendments to the 1989 Act including:

  • Enabling State and State-integrated schools to manage international student misconduct outside of school, including using stand-down, suspension, exclusion, and expulsion.
  • Extending the Export Education Levy reimbursement provisions to cover private and Partnership Schools. This allows international students to be reimbursed for their fees and continue to study in New Zealand in the event that the school they are studying at should fail.
  • Making it an offence for a person to falsely award credits to a student studying towards a qualification. This allows the New Zealand Qualifications Authority to pursue action against TEOs for falsely awarding credits.
  • Allowing TEIs to create a common fund and vest assets from a number of trusts in it.
  • Changing the term 'private training establishment' to 'independent tertiary establishment'.
  • Requiring providers to publish compulsory student services fee (CSSF) information on their websites (such as CSSF amount per equivalent full-time student, CSSF decision-making processes, and how students can be involved in CSSF decisions).

Food Safety Law Reform Act 2018
This Act amends the Animal Products Act 1999, Food Act 2014, and Wine Act 2003 to implement the recommendations from the Whey Protein Concentrate (WPC) Contamination Inquiry. The Act also makes discrete changes to align some of the processes under all three Acts. In particular, the Act:

  • Enables regulations to set the content and format of the parts of custom risk management programmes and plans that must be provided to MPI for registration, and allows the Director-General to require amendments to programmes and plans.
  • Enables regulations to provide more-detailed traceability obligations and provide the ability for the Government to set recall requirements as needed.
  • Adds enforcement tools currently in the Food Act (improvement notices, an infringement regime, compliance orders, and penalties based on commercial gain) to the Animal Products Act and Wine Act.
  • Allows Government to require businesses and individuals that deliver services to food operators (for example, research and diagnostic laboratories) to provide information relevant to managing serious food safety incidents.
  • Modernises the legislation to allow the use of automated electronic systems for statutory functions, for example issuing export certifications.
  • Addresses the WPC Inquiry’s concern about the increased use of tertiary notices for dairy regulation by providing a best practice framework for the use of regulations and notices.

Taxation (Annual Rates for 2017–18, Employment and Investment Income, and Remedial Matters) Act 2018
This Act is an omnibus Act which amends a number of pieces of legislation including the Income Tax Act 2007, Tax Administration Act 1994, KiwiSaver Act 2006 and the Goods and Services Tax Act 1985 to improve the accuracy of tax collected through the year and better align the tax treatment of employee share schemes with other forms of remuneration. There are a range of commencement dates for different provisions in the Act.

The Act includes measures that:

  • Increase the frequency with which employers provide PAYE information to Inland Revenue;.
  • Extend the 'bright line' test on residential property sales from two years to five, meaning that profits from residential investment properties which are bought and sold within five years will generally be taxable.
  • Require the payers of interest, dividends and taxable Māori authority distributions to provide detailed information about the recipient of those funds to Inland Revenue on a monthly basis.
  • Create an electronic register of persons with RWT exempt status to enable payers of amounts subject to RWT to verify whether the recipients of the RWT have exempt status or not.
  • Change the way in which employee share schemes are taxed to align the income tax treatment of employees who receive employee share scheme benefits with the tax treatment of other forms of employment income.
  • Allow the IRD to issue offshore persons (who do not have a New Zealand bank account) with an IRD number if they are satisfied as to their identity and background.

In the week ahead

What’s coming up in the House

In the Week(s) Ahead:

The next sitting day is Tuesday 10 April. During this week the the Annual Review debate will continue The House will also consider the first readings of the Coroners (Access to Body of Dead Person) Amendment Bill, the Privacy Bill, the Commerce Amendment Bill, and the Local Government (Community Well-being) Amendment Bill. Hon Jonathan Coleman will make his valedictory statement at 5.40 pm on Wednesday, 11 April. On Thursday, 12 April the House will adjourn until Tuesday, 1 May.

In consultation

New

Who

What

By when (2018)

Department of Conservation

Intention to grant a lease to Supporters of Tiritiri Matangi Incorporated.

13 April

Application for a lease at Aratiatia Rapids Recreation Reserve by Rapids Jet (2004) Limited.

13 April

Proposal to dispose of conservation land in the St Bathans Conservation Area.

16 April

Intention to grant a lease to Motuora Restoration.

23 April

Application to operate a kiwifruit orchard at Paengaroa Cemetery Reserve.

27 April

Nominations for the Queen Elizabeth the Second National Trust Board.

30 April

Application to hold, import and export a carved sperm whale tooth.

4 May

Application by NZSki Ltd for a ski field concession at Hakatere Conservation Park and Mount Hutt Forest Conservation Area.

29 May

Intention to grant concessions (leases, licences and easements) to the Aramoana Conservation Area and Aramoana Ecological Area.

29 May

Environmental Protection Agency

Application for approval to register and import ethanedinitrile (EDN) into New Zealand.

12 April

Proposals to change new organism status of fives species already present in New Zealand.

27 April

Financial Markets Authority

Consultation on the content of regulatory returns for licensed DI, MIS managers and DIMS providers.

11 April

Food Safety Australia New Zealand

Whether food derived using new breeding techniques should be captured for pre-market approval under the Code and whether certain definitions should be changed.

12 April

Seeking feedback on A1151: Amend Schedule 18 of the Australia New Zealand Food Standards Code to include ß-Galactosidase from Papiliotrema terrestris as a Processing Aid.

12 April

Seeking feedback on P1044: to standardise the use of plain English terminology for allergen declarations on food labels.

12 April

Inland Revenue

Public ruling PUB00298: GST treatment of payments made by parents to state and state integrated schools.

18 April

QWBA Income tax PUB00288: whether payments made by parents to state and state integrated schools are gifts for donation tax credit purposes.

18 April

Commissioner's statement on using a kilometre rate for business running of a motor vehicle ED0203.

30 April

Officials' issues paper "Ring-fencing rental losses".

11 May

QWBA Income tax PUB00237: what is the tax treatment of allowances paid and benefits provided to farm workers?

11 May

Operational statement ED0202: non-disclosure right for tax advice documents.

11 May

Public ruling PUB00309: cab sharemilkers and contract milkers deduct farmhouse expenditure using the approach in IS 17/02?

11 May

Draft standard practice statement ED0200: options for relief from tax debt.

18 May

Medsafe

Proposed changes to fees payable under the Medicines Regulations 1984.

27 April

Ministry for Primary Industries

Lone Star request for approval of its food control plan.

19 April

Care Association of New Zealand request for approval of its food safety manual.

23 April

Proposed changes to Import Health Standard for Animal Products that have undergone third country processing.

3 May

Draft Import Health Standard for importing Actinidia plants for planting.

4 May

Proposed animal products notice: diary recognised agencies and persons specifications.

7 May

Ministry of Business, Innovation and Employment

Consultation on New Zealand Telecommunications Relay Services Beyond 2019.

13 April

Code of Conduct for Financial Advice Services.

30 April

Ministry of Justice

Combined jurisdiction legal aid form.

12 April

Consultation on how Crown/Māori relations could be made better and the projects that should be focused on.

30 May

Ministry of Transport

Government Policy Statement on Land Transport.

2 May

New Zealand Transport Agency

SH58 speed reduction.

20 April

PHARMAC

Proposal to fund aflibercept and rivaroxaban.

16 April

Proposal to list single use instruments, and orthopaedic implants and associated products.

17 April

Proposal to list medical devices supplied by Obex Medical Limited.

18 April

Proposal to list mercaptopurine oral suspension.

20 April

 

Proposal to remove the funding restrictions for candesartan.

23 April

Current

Who

What

By when (2018)

Commerce Commission

Price setting event 3 – draft report Auckland Airport.

26 April

Waikato and Upper North Island voltage management – draft decision.

1 September to 30 September

Department of Conservation

Consultation on the current and future management of Molesworth Station.

14 April

Ministry of Justice

Māori Land Court customer survey.

30 June

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