Matter of opinion
Schrödinger's contract | A story of new public entities and private contracts
The announced reforms of the health system last week, while anticipated, were more ambitious, and will happen more quickly, than what was indicated in the Health and Disability System Review Report - released in March 2020 (2020 Report).
Whereas the 2020 Report envisaged a gradual reduction in the number of DHBs (from 20 to 8-10) over a number of years, all will now be disestablished and replaced with the new Crown entity Health NZ by July next year. For those with existing contracts with DHBs, what happens when your contracting party no longer exists?
As an exception to the usual principle that legislation should not interfere with contractual arrangements, the established public administrative practice in New Zealand is to use legislation to magic a fix. It avoids the need for new contracts or negotiated amendments, and importantly preserves private and non-for-profit sector trust in government arrangements (which is critical for future dealings). It involves the use of relatively standard provisions that "lift and shift" the business, operations (including contracts), and employees from the entities being disestablished to the new agency. The relevant provisions operate as a declaration of the new state of the world.
This mechanism was recently used in the Education (Vocational Education and Training Reform) Amendment Act 2020 which established the new Crown entity, the New Zealand Institute of Skills and Technology (NZIST) to take over the functions and responsibilities of the previously separate 16 polytechnics and institutes of technology. The operative provision is clause 36 in the new Part 10 of Schedule 1 of the Education Act which simply provides that, on and after the commencement date of the amendments, the rights, assets, and liabilities of the existing polytechnic vest in the existing polytechnic’s corresponding NZIST subsidiary. Employees were transferred by clause 38. That is, on the day of commencement the existing institutions ceased to exist and each new subsidiary company of NZIST had all the legal ownership rights and obligations of its forerunner. By law, a contract with a polytechnic was now effectively a contract with a different party without requiring contractual change. It is a relatively clean and administratively efficient process.
There is currently no indication that Health NZ will create subsidiaries as was done for NZIST, but the health system reforms will likely use a similar provision to transfer all DHBs' assets, rights and obligations to Health NZ.
Saying, that complexities can arise. Under the Education Act reforms, the name of one of the polytechnics was misspelt in the legislation. This created an existential dilemma where the assets obligations and rights could not transfer to the new subsidiary. However, at the same time, the polytechnic who, before the legislation, owned the assets, was the legal party, now no longer existed. There was no owner and no party. These arrangements, all founded on the concept of a legal entity, were in a state of flux – a legal, even Kafkaesque, black hole. While ultimately, the situation could be quickly remedied in this instance under section 25 of the Legislation Act 2012 (which allows for corrections of typographical errors without further amendment to the Act – noting a different type of error would have been less easy to fix) it highlighted the centrality of legal and written concepts to our ability to function.
The significance of the announced reform of the health sector, and the reframing of its objectives, will necessarily mean changes in the services required from providers. Efficiencies created by having a centralised operation will no doubt lead to a reduction in providers in some areas. Opportunities may open in others. Contracts due for renegotiation will need to fit with the new arrangements and it cannot be ruled out that some contracts will need to be terminated (in accordance with their terms) earlier than anticipated.
But the broader starting point is that contracts should be carried over to the new entity, and the fact of the change of entity, should not in itself be used as a reason to avoid existing obligations. This can provide some sense of assurance, and allow parties to focus on their future relationships in a timely manner, taking account of expectations, fairness and the needs of both providers and communities.
In the news
Independent Review will explore the future of local government
Local Government Minister, Hon Nanaia Mahuta, announced on 23 April 2021 that there will be an independent review of New Zealand's local government system focusing on how the system should evolve over the next 30 years. The Review will consider what changes should be made to improve the wellbeing of New Zealand communities and the environment, and actively embody the Treaty partnership. The Review will commence on 3 May 2021, and an interim report on the probable direction of the Review will be released on 30 September 2021. A draft report for public consultation is expected to be released on 30 September 2022, and a final report on 30 April 2023.
Further information can be found in our Russell McVeagh update.
Smokefree 2025 Action Plan open for consultation
In 2010, the Māori Affairs Select Committee led an inquiry into the tobacco industry in New Zealand and the consequences of tobacco use among Māori. In response to this inquiry, the Government adopted measures to reduce smoking prevalence and the availability of tobacco products, with the goal to make the country "smoke free" by 2025. Since this time, smoking rates have declined. However, the Government considers that there is more to do in this space, particularly to reduce smoking rates among Māori, Pasifika and those living in New Zealand's most disadvantaged communities.
The Ministry of Health has proposed a framework to guide the development of the Smokefree 2025 Action Plan. A six-week consultation on the proposals of the Action Plan is already underway.
The intended outcomes of the Action Plan are threefold: eliminating inequities in smoking rates and smoking related illnesses, increasing the number of children and young people who remain smoke free, and increasing the number of people who successfully quit smoking.
Five focus areas have been proposed to achieve these outcomes, including:
changes to the tobacco control system;
making smoked tobacco products less available;
making smoked tobacco products less addictive and less appealing;
making tobacco products less affordable; and
enhancing existing initiatives.
For each focus area, the Ministry has proposed options that it considers will have the greatest potential to accelerate progress towards a "smoke free" New Zealand. These options include increasing Māori governance of the tobacco control programme, increasing compliance and enforcement activity, licensing all retailers of tobacco and vaping products, reducing the number of smoked tobacco product retailers, reducing nicotine in smoked tobacco products, setting a minimum price for tobacco, and increasing investment in stop smoking services for priority populations.
Submissions on the proposed Action Plan are due on 31 May 2021, and can be made here.
Health Sector Reform
On 21 April 2021, the Government announced the details of significant health system reforms in response to the Health and Disability System Review. The Government has proposed a restructure of the current system, most significantly introducing a new Crown entity (Health NZ) to replace all 20 District Health Boards. Health NZ will have four regional divisions and will be responsible for the day-to-day operation of our health system. A new Māori Health Authority will be introduced and will have joint decision-making rights to agree to national strategies, policies and plans, and will be empowered to directly fund innovative health services targeted at Māori. Finally, a new Public Health Agency will be established to provide technical expertise and leadership on public health policy, strategy and intelligence. This Agency was not recommended by the Review, but was a commitment made by the Labour Party prior to the 2020 election.
For more information see Russell McVeagh's previous update here.
Proposed Wellington Council restructure
Mayor of Wellington, Andy Foster, has announced a proposal to restructure Wellington City Council (Council) in response to the Wellington City Council Governance Review led by Peter Winder (the Winder Review) (accessible here). The Review's terms of reference provided scope to comment on the issues facing the Council and, specifically, to identify and recommend actions to overcome governance problems.
The Council has agreed to implement the Winder Review's recommendation to replace the current portfolio system with a committee structure. Under the status quo, each councillor holds an individual portfolio, but decisions are voted on at a committee of the whole, held twice weekly. This structure is the exception rather than the norm in governance arrangements within New Zealand councils. Under the new structure, taking effect from 1 June 2021, the Council would instead establish nine committees to meet once every four weeks. The committees would broadly mirror the Council's management structure, with appointed committee chairs and deputy chairs.
This restructure aims to reduce divided decision making, which was identified as a key issue during the Winder Review, and was suggested to have been further exacerbated by the diverging range of views held by councillors in the current elected Council. The changes instead aim to increase consensus, trust and collaboration. Despite the Review identifying the prominence of division and disagreement amongst Council members, it found there was no evidence of bullying. Consequently, no Ministerial intervention into the Wellington City Council was recommended (unlike a recent independent review into Tauranga City Council).
Formal adoption of the Winder Review's recommendations, committee structure and respective terms of reference will take place at the full Council meeting on 28 April 2021.
Electricity Authority consultation on batteries in the electricity market
In early April, the Electricity Authority began the consultation process to amend the Electricity Industry Participation Code 2010 (Code) to enable grid-connected batteries to participate fully in the national reserves market.
Grid-scale batteries are large battery energy storage systems that charge from the grid, then discharge energy at a later time. Grid-scale batteries are currently able to serve New Zealand's energy market for some purposes, but are excluded from the market for instantaneous reserve generation. This means that they cannot be used to provide energy to the national grid in the event of unexpected generation or transmission outages. This exclusion from the market is not intentional. Rather, when the Code was first developed, batteries were not contemplated in the context of instantaneous reserve generation, and have only become suitable due to technological advances of recent years. Consequently, as the Code is currently drafted, grid-scale batteries do not comply with the requirements of instantaneous reserves.
The Authority believes that amending the Code to introduce grid-scale batteries as a new type of acceptable instantaneous reserve will benefit consumers in the long term. The amendments are intended to increase system reliability and create more competition in the reserves market, including through enabling electricity generated from the South Island to be exported to the North Island. This will be particularly useful if and when the aluminium smelter at Tiwai exits the market.
The consultation process is scheduled to take four weeks, with submissions closing on 6 May. The target date for the proposed changes to come into effect is 1 April 2022.
Submissions open on climate-related financial disclosure regime
Earlier this month, Parliament had its first reading of the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Bill 2021, which was outlined in our earlier update (available here). The Select Committee has now called for submissions on the Bill, which close at midnight on 28 May 2021.
Government introduces ban on new coal fired boilers
On 8 April 2021, the Government made a number of announcements in its plan to address climate change. The first of these announcements was a ban on new coal-fired boilers, which will come into effect by 31 December 2021. The ban will apply only to new coal-fired boilers which operate at low and medium temperature, meaning that new high-temperature boilers, often used in industries such as steel manufacturing, can still be used to burn coal. This is the first major announcement following the release of the Climate Commission's draft package of advice to the Government in February.
This ban is one of the many elements of a national plan currently being developed by the Ministry for the Environment (Ministry). The resulting plan, or national direction, will be used as a regulatory tool in the creation of nationally-consistent rules. The Ministry is currently seeking feedback on a range of proposals, with consultation closing on 20 May 2021.
Matters the Ministry is consulting on include:
implementation of the ban on new low and medium temperature coal boilers;
phasing out all existing coal boilers by 2037;
prohibiting the use of other fossil fuels boilers in cases where this would be economically viable and suitable alternative technology exists; and
requiring industrial sites above a threshold to have emissions plans to encourage energy efficiency, best practice, and a transition to low-emission fuels.
The Ministry for the Environment's consultation document can be read here, and submissions can be made here.
As part of these announcements, the Government also revealed the successful applicants in round one of its Investment in Decarbonising Industry Fund. The Fund was set up as part of the Government's plan to partner with the private sector to help it transition away from fossil fuels, and will see $69 million of capital grants co-investment made available to support business over its lifetime. At this stage, the fourteen selected companies will receive $22.88 million in co-funding to help their businesses make changes, such as switching from boilers run on coal and gas to "cleaner" alternatives. It is estimated that these fourteen projects will achieve up to 10 percent of the gross long lived emission reductions required from the Climate Commission’s first draft carbon budget for the period 2022-2025, which is equivalent to taking 49,000 cars off the road.
COVID-19 vaccine update
The Government is continuing its rollout of the COVID-19 vaccine. As at 20 April 2021,140,580 first doses of the COVID-19 vaccine had been administered, along with 42,771 second doses. The Ministry of Health recorded that New Zealand had 419,310 vaccine doses on hand at the week ending 18 April 2021.
Currently, the vaccine is being rolled out to frontline healthcare, border and MIQ workers, and those living in their households. The vaccine roll-out is scheduled to begin for individuals who are at risk of getting "very sick" from COVID-19 from May, while it is expected that the general population aged 16 and over will be eligible from July. By the end of 2021, the Ministry of Health estimates that 8 million doses will have been administered (this estimate is high level and subject to regular revisions as further information becomes available). These vaccines have been secured by the Government from four different suppliers, including, Pfizer, Janssen Pharmaceutica, Novavax and AstraZeneca.
Following the vaccine roll-out, the Government expects to face a number of decisions regarding possible changes to the country's border and public health settings. On 8 April 2021, the formation of the Strategic COVID-19 Public Health Advisory Group was announced. This group of independent health experts, chaired by Professor Sir David Skegg, has been tasked with advising the Government on the country's post-vaccination future. Expected areas of interest include required vaccination rates before border settings can be relaxed, evidence for transmission blocking properties, public health controls that should be implemented when the borders reopen, and possible responses to variants that the vaccine does not currently cover. The creation of this group aims to ensure that any decisions are informed by expertise in epidemiology, infectious diseases, public health and modelling.
New financial advice regulatory regime comes into force
From 15 March 2021, the Financial Services Legislation Amendment Act 2019 (Amendment Act) established a new regime for the regulation of financial advice in New Zealand.
The Amendment Act was developed following a statutory review of the existing regulatory regime completed by the Ministry of Business Innovation and Employment (MBIE) in 2016. The Amendment Act repealed the Financial Advisers Act 2008 and made changes to both the Financial Markets Conduct Act 2013 and the Financial Service Providers (Registration and Dispute Resolution) Act 2008. The majority of the regulation of financial advice now sits within the Financial Markets Conduct Act.
Under the new regime, anyone who gives regulated financial advice to retail clients (or has others provide advice to retail clients on their behalf) must hold or operate under a Financial Advice Provider licence granted by the Financial Markets Authority (FMA). The requirement to hold an appropriate licence and the conditions imposed on licence-holders now apply equally to individuals and entities providing online advice ("robo-advice”). Transitional licences were previously available, which enabled advisers to continue to provide financial advice while allowing time to meet any new competence, knowledge and skills standards. However, from 16 March 2021, anyone applying for a Financial Advice Provider licence must apply for a full licence.
Those that provide regulated advice to retail clients are now subject to obligations to place the interests of their client first and adhere to a new Code of Professional Conduct, which sets standards of competence and professional conduct. Other significant changes include:
simplifying the regime and its terminology, including removing the categories of Authorised Financial Advisers, Registered Financial Advisers and Qualifying Financial Entities;
new disclosure requirements, licencing fees and levies, and registration requirements, which are all set in separate regulations (more details can be found on MBIE's website here); and
requiring anyone that provides financial services to retail clients to belong to an approved dispute resolution scheme.
Further information on the new regulatory regime, including details on the licencing process and requirements, can be found on the FMA's website here.
Government announces Establishment Unit for Auckland light rail
On 31 March 2021, Transport Minister Michael Wood announced the formation of an Establishment Unit in the hopes of progressing the currently stalled Auckland light rail project. This decision was in response to feedback from stakeholder groups which expressed that while a rapid transit system was widely supported, Aucklanders felt that they had not been sufficiently involved in the project previously. One of the Establishment Unit's key goals is to ensure that the views of Aucklanders are taken into account in the creation of a "modern, connected mass-transit system" for New Zealand's largest city. The Establishment Unit will sit within Waka Kotahi (the New Zealand Transport Agency), and consist of members of the local government, key agencies and wider community.
Former Chief Executive of Manukau City Council, Leigh Auton, has been appointed as Independent Chair of the Establishment Unit. Auton was selected with regard to his previous experience with transport infrastructure, including his involvement in Auckland's heavy rail network, Manukai Rail Station and Te Irirangi Drive.
The Government has designated the Establishment Unit a six-month timeframe to engage with stakeholders and communities in partnership with Māori. The Establishment Unit's programme outlines that, through doing this, it will be able to develop a business case so that evidence-based decisions can be made regarding cost estimates, funding options, and determining the best form of delivery entity for the resulting transport system.
The Establishment Unit will provide advice to the Government based on these findings by the end of 2021. After receiving this advice, the Government then plans to make key decisions regarding route, mode and delivery entity, which will subsequently be communicated to the public, along with information regarding cost and timeframes.
Update on the water reform pipeline
Under the leadership of Hon Nanaia Mahuta, the Government has been working hard on its proposed full-scale regulatory and structural reform of water service delivery. The Government is concerned that the scale of investment required in council-owned three waters infrastructure is unbearable for local authorities and their communities. Following responses by local authorities to requests for information, the Department of Internal Affairs (DIA) thinks that an estimated maintenance spend of $45 billion over the next 30 years is conservative. The case for sector reform is well established.
The reform process includes the following parts:
Establishment of a new water regulator (Taumata Arowai) – the board was appointed in February (see the press release here).
A new drinking water regulatory framework, to be administered by Taumata Arowai. The Water Services Bill is currently at select committee stage. A report is due back on 8 June 2021.
Legislation to facilitate council decision-making on participation in the new service delivery system, and to establish the new water services entities.
Economic regulation of the new water service entities.
The Government's preference is for three to five publicly owned statutory water services entities to replace the existing 70 odd public drinking-water suppliers. It is currently taking a voluntary approach to reform – all affected local authorities are included in the reform programme, but they can opt out.
The Government expects the following features to be included/retained in the reformed water services structure:
The new entities must be publicly owned, statutory entities.
The design of the entities will protect against privatisation in future. For example, Cabinet will need to decide whether the entities should have a "no-shareholding structure".
- The new water services entities must be able to borrow independently of local authorities, but local authorities and mana whenua will retain a degree of influence over the new entities.
The Government has been undertaking engagement with key stakeholders on an Emerging Structure for the design of the new water services entities. The slides are available here, and the proposed structure in the diagram above.
Final decisions on economic regulation are yet to be taken. Current indications are that:
Individualised price quality paths plus information disclosure will apply to the new water services entities.
Councils who opt out would be subject to a form of information disclosure.
An independent and credible economic regulator (such as the Commerce Commission) would be appointed to administer the new regime.
The Government anticipates that all water services entities will be operationally live by June 2024. Local authorities will continue to deliver water services until at least early 2024.
Update on global progress under Christchurch Call
The Government has recently announced progress under the Christchurch Call following a 'stocktake' report undertaken by France and New Zealand. Since 15 May 2019, the Call has received support from more than 50 countries and international organisations, and 10 tech companies. The reform of the Global Internet Forum to Counter Terrorism, as an independent entity, has been designed to encourage and enable a multi-stakeholder approach, with countries, companies and civil society working together. New Zealand and France intend to re-convene supporters around the second anniversary of the Call to focus on the next steps identified in the report.
In tandem, the Government has introduced the Counter-Terrorism Legislation Bill (Bill) with a view to increase New Zealand's response to terrorist activities. The introduction of this Bill is the Government's first step in response to Recommendation 18 of the Royal Commission into the Terrorist Attack on Christchurch masjidain on 15 March 2019. The Recommendation called for a review of all legislation related to New Zealand's counter-terrorism effort. The Bill amends the Terrorism Suppression Act 2002 and the Terrorism Suppression (Control Orders) Act 2019. Proposed offences under the Bill include travelling to or from New Zealand with the intention to carry out a terrorist offence, and planning or preparing for a terrorist act, while terrorist weapons and combat training would be more clearly criminalised. Further, Police and the Security Intelligence Service would have warrantless powers of entry, search and surveillance when suspecting someone of planning a terrorist attack. Once the Bill has passed through its first reading, the Justice Select Committee will call for public submissions on the Bill.
The Government has also been asked whether it would consider the addition of an independent office, similar to that which has been implemented in the United Kingdom and Australia. This body would have the role of considering how the counter-terrorism laws are put into practice and would be able to report on any untoward behaviour by agencies using counter-terrorism laws. At this stage, the Government has said it is considering options for oversight as part of its broader response.
Action plan to address modern slavery in New Zealand
On 16 March 2021, Workplace Relations and Safety Minister Michael Wood released New Zealand's Plan of Action against Forced Labour, People Trafficking and Slavery (Plan). The Plan sets out the Government's approach to addressing these crimes.
The Plan outlines 28 high-level actions that a range of Government agencies will undertake through to 2025, categorised under three key pillars:
Prevention: aiming to prevent the conditions that enable forced labour, people trafficking and slavery through awareness raising and training.
Protection: aiming to enable victims to be identified and protected, and ensuring the range of support available to victims is fit-for-purpose.
Enforcement: aiming to ensure that the tools to prosecute and penalise those who exploit, or benefit from exploitation, are effectively and efficiently used.
These three pillars are underpinned by a partnership approach, with effective partnership being acknowledged as vital for the Plan's implementation. The Government has consequently indicated an intention to work closely with others taking action against these crimes, including civil society groups, unions, businesses, academics and foreign governments.
The Plan will ensure New Zealand implements measures to meet its international commitments, including those under the Forced Labour Protocol, which came into force in New Zealand in December 2020. Minister Wood has also indicated that the Plan will additionally explore the implementation of modern slavery legislation, in line with one of Labour's pre-election commitments. New Zealand currently has no such legislation, unlike overseas jurisdictions such as the United Kingdom and Australia.
First auction on emission allowances under ETS
Following from our earlier update on emissions trading auctioning (available here), the first auction of New Zealand units under the changes to the Emissions Trading Scheme took place on Wednesday 17 March 2021. 40 participants took part in the auction, and a total of 4.75 million New Zealand units were sold at a price of $36.00 per unit. Climate Change Minister Hon James Shaw said that the auction will assist in "achiev[ing] [our targets under the Paris Agreement and New Zealand's own emission reduction targets] by translating the targets we have put in place into a price signal that drives much-needed investment into low carbon technologies."
Consultation open on additional measures in the new financial conduct regime
The Ministry of Business, Innovation and Employment (MBIE) has now opened public consultation
on two discussion documents relating to the Financial Markets (Conduct of Institutions) Amendment Bill currently before the House. The two documents address proposed regulations for the conduct of financial institutions and the treatment of intermediaries. Submissions close on Friday 4 June at 5pm.
See Russell McVeagh's update here. See the MBIE update and discussion documents here.
In the House
In the House
The House is adjourned from 15 April 2021 to 4 May
The start of the Annual Review Debate has been rescheduled for the first day back (4 May).
The Immigration (COVID-19 Response) Amendment Bill will also complete its remaining stages.
Other legislation to be considered will include:
the first reading of the Counter-Terrorism Legislation Bill; and
the second readings of the Holidays (Increasing Sick Leave) Amendment Bill, and the Fair Trading Amendment Bill.
Consultation open on accession to CPTPP
In early February the United Kingdom formally submitted a letter notifying its intent to begin the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) accession process. By doing so, the United Kingdom has become the first non-founder country to request to join the trading bloc.
The notification letter was submitted to New Zealand which, as the current official depository country of the CPTPP, is entrusted to receive and keep custody of notifications and communications relating to the agreement.
The accession process outlined by the CPTPP Commission encourages countries seeking to join the agreement to engage informally with existing members, to address any concerns and questions they might have before submitting a formal request. Since July 2018, United Kingdom has engaged with all 11 members countries at both ministerial and official level, each of which has welcomed its interest in accession.
Having now made a formal request, member countries must decide whether to formally commence the accession process. If members decide to proceed, the CPTPP will convene a working group to discuss the United Kingdom’s request.
A key part of these discussions will be to identify how the United Kingdom will meet the standards required under the CPTPP, including whether any changes in its domestic laws are required to comply with its CPTPP obligations, and ensure that the commitments it makes on market access for goods, services, investment, government procurement and temporary entry for business persons are satisfactory to existing CPTPP members.
Before negotiations commence, the Ministry of Foreign Affairs and Trade has launched public consultations requesting feedback on the key areas of importance for New Zealanders when considering accession of other economies to CPTPP, and in particular:
what issues in New Zealand's trade relationship with prospective new members should be prioritised in accession negotiations;
whether there are any specific barriers to trade and investment in prospective new members that need to be addressed in accession to the CPTPP; and
whether there are any areas where New Zealand and prospective new members could cooperate more closely to enhance trade and economic connections.
Submissions on the consultation are due by 2 May 2021, and can be made here.
Progress of legislation
Appropriation (2019/20 Confirmation and Validation) Bill
Type of Bill: Government
Member in Charge: Hon Grant Robertson
This Bill aims to confirm the Public Finance (Transfers Between Outputs) Order 2020, which was made under section 26A of the Public Finance Act 1989. Section 26A permits the Governor-General to direct an amount appropriated in a Vote for an output expense to be transferred to another output expense appropriation in that Vote. This direction by Order in Council can only be made where:
the transfer would not increase the appropriation by more than 5%;
there would not have been a prior appropriation transfer made within that financial year; and
the total amount appropriated for all output expense appropriations for that Vote for the financial year remains unaltered.
Biosecurity (Information for Incoming Passengers) Amendment Bill
Type of Bill: Member's
Member in Charge: Steph Lewis
This Bill would amend the Biosecurity Act 1993 to require that all craft entering New Zealand must show to all passengers on board, in writing or by audio-visual recording, information about New Zealand's biosecurity requirements. Additionally, the Director-General of Health would be required to approve the material and give notice of the approval in the Gazette.
Child Protection (Child Sex Offender Government Agency Registration) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Poto Williams
This Bill seeks to clarify the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) by specifying that the Act applies to the registration of all child sex offenders, regardless of whether the offending took place before or after the Act entering into force. The Bill would make explicit that the Act applies retrospectively to persons who committed a qualifying offence before, but were convicted and sentenced after, the Act came into force.
This Bill responds to the Supreme Court decision of D (SC 31/2019) v New Zealand Police  NZSC 2 which found the Act to be insufficiently clear on the eligibility for registration to the Child Sex Offender Register of offending that preceded the Act.
Commerce Amendment Bill
Type of Bill: Government
Member in Charge: Hon Dr David Clark
This Bill would amend the Commerce Act 1986 (the Act) to increase the prohibition against misuse of market power (section 36), alongside other amendments to the functioning of the Act. The reform of section 36 arises out of a review into the operation of the misuse of market power prohibition.
The Bill would reform the anti-monopolisation provision to clarify that conduct by persons with substantial market power that has the purpose, effect or likely effect of substantially lessening competition in markets is prohibited, aligning section 36 to its Australian counterpart. This Bill would permit the Commerce Commission to grant authorisation for conduct in breach of s 36 in the public's interest.
Counter-Terrorism Legislation Bill
Type of Bill: Government
Member in Charge: Hon Kris Faafoi
This is an omnibus Bill that seeks to amend three pieces of counter-terrorism legislation: the Terrorism Suppression Act 2022, the Search and Surveillance Act 2012, and the Terrorism Suppression (Control Orders) Act 2019. The single broad policy the Bill would purport to achieve is to support earlier risk management and prevention of terrorist attacks.
The amendments seek to provide relevant agencies with additional tools and legal authority to identify and prevent terrorist activities. The changes would specifically create new offences that criminalise:
travel to, from, or via New Zealand with the intention to carry out a specified offence in the Terrorism Suppression Act 2002;
planning or preparation for a terrorist act; and
weapons training or combat training for terrorist purposes.
Crimes (Robbery) Amendment Bill
Type of Bill: Member's
Member in Charge: Erica Stanford
This Bill would update section 234 of the Crimes Act 1961 to insert "or unlawful taking" to the provision, broadening the definition of robbery. This amendment would allow a range of carjacking scenarios to qualify as theft without needing to prove an intent to permanently deprive, as is currently the case.
Education and Training Amendment Bill
This Bill amends the Education and Training Act 2020. The Bill makes a number of minor amendments to the Act. The proposed amendments include:
ensuring that provisions which are best suited for parliamentary enactment remain as part of the principle Act rather than being repealed and moved to regulations;
clarifying that education workers who meet the definition of a children's worker in the Children's Act 2014 must be safety checked under that Act, as opposed to being police vetted under the principle Act. Furthermore, clarifying that all other early childhood centre or school employees must meet the relevant Police vetting requirements under the principle Act;
ensuring cohesion between statutes to address risk of inadvertent changes;
extending the time frame in a transitional provision that prohibits tertiary education providers from charging trainees a compulsory student services fee to one year. This extension reflects the impact of COVID-19, during which it has not been possible to engage with learners and providers on the on-going arrangements to be developed;
ensuring that former teachers are not automatically enabled to use physical restraint in schools. They must first be approved to use physical restraint by the school that employs them;
clarifying the early childhood education regulation-making powers to ensure that they reflect the new licensing framework introduced by the principle Act; and
specifying the agencies to which any ministerial statement of expectations could apply to ensure that it reflects the policy intent of the provision.
Holidays (Parent-Teacher Interview Leave) Amendment Bill
Type of Bill: Member's
Member in Charge: Terisa Ngobi
The Bill would amend the Holidays Act 2003 to provide all employees with a minimum entitlement to paid leave to attend their child's parent-teacher interview.
Specifically, the Bill would provide the following:
an employee would be required to give at least three working days' notice prior to the date of the parent-teacher interview;
an employer would not be able to unreasonably withhold consent for this leave;
an employee would be entitled to up to 4 hours of leave in each 12-month period of continuous employment; and
parent-teacher leave would not be able to be paid out upon the employee's employment ending.
Human Rights (Disability Assist Dogs Non-Discrimination) Amendment Bill
Type of Bill: Member's
Member in Charge: Ricardo Menéndez March
This Bill would amend the Human Rights Act 1993 to include a definition of disability assist dog. This inclusion would make it clear that if any individual, organisation or business discriminates against a person, for example, by denying a service to that person, on the basis that the person has or uses a disability assist dog, then they would be denying the service to a person on the basis of their disability, therefore discriminating against them.
An example of a service that would be affected by the Bill is the provision of accommodation. The Bill would mean that no person can be discriminated against while applying for rental housing solely on the basis that they have and use a disability assist dog.
Immigration (COVID-19 Response) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Kris Faafoi
In May 2020, Parliament passed the Immigration (COVID-19 Response) Amendment Act 2020, which amended the Immigration Act 2009, giving the Government eight time-limited powers to enable the immigration system to respond flexibly to challenges raised by the COVID-19 outbreak.
The Immigration (COVID-19 Response) Amendment Bill would alter the Act in two Parts. Part 1 (temporary powers relating to visas) would extend the repeal date of the powers relating to visas in response to Covid-19 by a further two years, to the close of 15 May 2023. These powers enable the Government to amend and extend visa conditions for large groups of people, stop people applying to travel to New Zealand while boarder restrictions are in place, and enable the revocation of entry permission. Part 2 (modifications of principal Act in connection with temporary powers) would extend, to the close of 15 May 2023, the repeal date of a series of modifications made to the Immigration Act in light of the temporary powers relating to visas.
Income Tax (Adjustment of Taxable Income Ranges) Amendment Bill
Type of Bill: Member's
Member in Charge: Hon Simon Bridges
This Bill would ensure that income tax thresholds are in line with inflation. At present, there are no automatic adjustments to the tax thresholds which means that over time individuals move into higher tax brackets without consideration of the rising cost of living. The Bill would amend the Income Tax Act so that every three years – 12 months after every election – the income tax brackets will be reviewed. Each tax threshold would increase by the level of inflation since the previous adjustment. The adjustment would be effected by Order in Council to ensure that the Government of the day may prevent the change if it believes it has a good reason to do so.
Incorporated Societies Bill
Type of Bill: Government
Member in Charge: Hon David Clark
This Bill would put in place a modern framework of basic legal governance, and accountability obligations for incorporated societies and those who run them. The regime to be put in place by the Bill would be guided by the following broad policy objectives:
members of a society have the primary responsibility for holding the society to account;
a society should promote the trust and confidence of its members;
a society should be self-governing; and
a society should not distribute profits to its members.
The Bill would put in place six broadly expressed duties on the officers of a society (modelled on directors' duties in the Companies Act 1993):
officers should act in good faith and in the best interests of the relevant society;
officers must exercise their power for a proper purpose;
officers must not act, or agree to the society acting, in a manner that contravenes the Bill or the constitution of the society;
officers must show the care and diligence that a reasonable person with the same responsibilities would exercise in the same circumstances;
officers must not let the activities of the society be carried on in a way likely to create substantial risk of serious loss to the society's creditors; and
officers should not agree to a society incurring an obligation unless they believe that the society will be able to perform the obligation when it is required to do so.
Land Transport (Vehicles Responding to Electrical Emergency) Amendment Bill
Type of Bill: Member's
Member in Charge: Simeon Brown
This Bill would amend the Land Transport Act 1998 to allow vehicles which are responding to electrical emergencies to be able to display lights which require general traffic to pull over and let the vehicle through. The Bill would insert a new section 153A following section 153 to allow the Minister to make rules concerning electrical emergency vehicles. The Bill would also insert a new section 164 following section 164A to require the Minister to allow electrical emergency vehicles to use beacons which require other drivers to give way to emergency vehicles.
Mental Health (Compulsory Assessment and Treatment) Amendment Bill
Type of Bill: Government
Member in Charge: Andrew Little
This Bill is intended to improve the protection of individual rights and the safety of patients and the public, and enable a more effective application of the Mental Health (Compulsory Assessment Treatment) Act 1992 by:
eliminating indefinite treatment orders;
minimising the risk of harm to the patient or the public when transporting forensic patients who are special patients as defined under the Act;
addressing technical drafting issues that will improve the administrative efficiency of the Act; and
removing the sunset date for technical amendments and audio-visual link amendments made by the COVID-19 Response (Further Management Measures) Legislation Act 2020.
Ngāti Rangitihi Claims Settlement Bill
Type of Bill: Government
Member in Charge: Andrew Little
The Ngāti Rangitihi deed of settlement (the deed) was signed by Ngāti Rangitihi and the Crown on 5 December 2020. This Bill would record the acknowledgments and apology made to Ngāti Rangitihi by the Crown when the deed was signed and give effect to the elements in the deed that require legislation. The Bill would also give effect to certain provisions of the deed of settlement that settles the historical claims of Ngāri Rangitihi
The settlement provides for 19 sites of deep significance to be transferred to Ngāti Rangatihi as cultural redress on the settlement date. The settlement establishes the Tarawera Awa Restoration Strategy Group, which will operate as a permanent joint committee of the Bay of Plenty Regional Council. This Group will support, co-ordinate and promote the integrated restoration of the mauri and well-being of the Tarawera River Catchment. The settlement also provides $50,000 to help enhance the mauri of, and Ngāti Rangitihi's relationship with, the Tarawera Awa.
Also provided through the settlement are statutory acknowledgments and deeds of recognition over four areas (including Tarawera Awa), and statutory acknowledgements over seven areas. A whenua rāhu is provided over the Lake Tarawer Historic Reserve and part of Lake Tarawera Scenic Reserve.
Policing (Killing a Police Dog) Amendment Bill
Type of Bill: Member's
Member in charge: Matt Doocey
This Bill was an opposition party member's bill that was defeated at first reading. The Bill intended to amend the Policing Act 2008 to increase the penalty for killing a dog from a maximum of two years to a maximum of five years imprisonment. This amendment aimed to align New Zealand law with penalties observed in comparable overseas jurisdictions.
Regulatory Standards Bill
Type of Bill: Member's
Member in charge: David Seymour
The Bill seeks to set a number of principles that all Acts of Parliament, regulations and tertiary legislation should comply with. These principles cover seven key areas, including:
The Bill would require lawmakers to provide written certification that any proposed legislation is consistent with the prescribed principles. If incompatibilities exist, these bodies would need to provide explanation as to why such incompatibilities are reasonable and justifiable in a democratic society.
The Bill would also provide for monitoring of the certification process by allowing courts to provide declarations of incompatibility in circumstances where principles have been breached. This role is only declaratory however. While courts would be directed to choose an interpretation which is consistent with the principles, the Bill would not empower them to strike down legislation, or take other penal action, on the basis of inconsistencies. Initially, directions in relation to court's declaratory and interpretive powers would apply only to regulations made after the Bill's commencement. After ten years, these powers would additionally apply to all existing legislation.
Secondhand Dealers and Pawnbrokers (Electronic Records) Amendment Bill.
Type of Bill: Member's
Member in charge: Andrew Bayly
This Bill would amend the Secondhand Dealers and Pawnbrokers Act 2004. While the Act currently requires that second-hand dealers, internet auction providers and pawnbrokers keep records of specific information in respect of goods they deal with, there is no prescribed manner in which they must do this. Currently, many dealers keep only handwritten records or printed computer copies to comply with their obligations under the law. The amendments would instead require that these records be kept in an electronic format.
The Bill would also require that police be given access to these electronic records upon request. The proposed amendments would enable Police to receive and process records digitally, and compare the output data against records of known burglars and stolen property. In doing this, the Bill aims to assist Police in their ability to track stolen goods being sold through dealers and pawnbrokers, and apprehend offenders.
Social Security (Subsequent Child Policy Removal) Amendment Bill
Type of Bill: Government
Member in charge: Hon Carmel Sepuloni
This Bill would remove the subsequent child policy from the Social Security Act 2018 and Social Security Regulations 2018. It sets out that the work obligations for parents receiving a main benefit vary based on the age of their only or youngest child.
Under the current policy, if a parent who is already receiving a benefit has another child, their obligations for seeking work are based on the age of their youngest non-subsequent child once the subsequent child reaches their first birthday. This is because section 30 of the Act provides that an additional dependent child aged one year or over is not a dependent child for the purposes of sole parent support eligibility. This means that, in some circumstances, a parent is required to seek and enter part time work as soon as their youngest child turns one, or else face the potential loss of benefit income.
The Bill proposes to make amendments to both the relevant Act and regulations which would remove the subsequent child policy altogether. Consequently, work obligations of parents receiving a benefit would be based solely on the age of the youngest child. The Bill will also provide for a transitional period to ensure that, where applicable, the Ministry of Social Development is required to treat clients in line with the removal of the policy.
Sunscreen (Product Safety Standard) Bill
Type of Bill: Member's
Member in charge: Todd Muller
The Bill would require the Minister of Commerce and Consumer Affairs to recommend the setting of mandatory regulations prescribing a safety standard for sunscreen products. These regulations would be set under section 29 of the FTA 1986, which empowers the making of product safety standards in relation to particular goods.
While New Zealand currently has standards for the testing and labelling of sunscreen, compliance with these standards is entirely voluntary. The Bill aims to increase consumer confidence in SPF claims made by manufacturers by imposing objective and mandatory safety standards.
Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill
Type of Bill: Member's
Member in charge: Matt Doocey
This Bill would prohibit the importation, supply and acquisition of synthetic urine unless authorised by the Director-General. While the Bill does not intend to prohibit the use of synthetic urine for legitimate purposes, such as scientific research, it recognises that some New Zealand retailers are advertising and selling synthetic urine on the open market. The Bill aims to put an end to this in order to prevent its use to deceive drug testing, especially in a workplace context.
Bills awaiting first reading
Insurance (Prompt Settlement of Claims for Uninhabitable Residential Property) Bill
Bills before Select Committee
Bills awaiting second reading
Ahuriri Hapū Claims Settlement Bill, as reported back from select committee
Births, Deaths, Marriages, and Relationships Registration Bill, as reported back from select committee
District Court (Protection of Judgment Debtors with Disabilities) Amendment Bill, as reported back from select committee
Electoral (Integrity Repeal) Amendment Bill, as reported back from select committee
Financial Markets (Conduct of Institutions) Amendment Bill, as reported back from select committee
Gas (Information Disclosure and Penalties) Amendment Bill, as reported back from select committee
Health (Fluoridation of Drinking Water) Amendment Bill, as reported back from select committee
Health (National Cervical Screening Programme) Amendment Bill, as reported back from select committee
Holidays (Increasing Sick Leave) Amendment Bill, as reported back from select committee
Kermadec Ocean Sanctuary Bill, as reported back from select committee
Ngāi Te Rangi and Ngā Pōtiki Claims Settlement Bill, as reported back from select committee
Organic Products Bill, as reported back from select committee
Overseas Investment Amendment Bill (No 3), as reported back from select committee
Protected Disclosures (Protection of Whistleblowers) Bill, as reported back from select committee
Rights for Victims of Insane Offenders Bill, as reported back from select committee
Sale and Supply of Alcohol (Renewal of Licences) Amendment Bill (No 2), as reported back from select committee
Screen Industry Workers Bill, as reported back from select committee
Tauranga Moana Iwi Collective Redress and Ngā Hapū o Ngāti Ranginui Claims Settlement Bill, as reported back from select committee
Bills awaiting third reading
Bills awaiting Royal Assent
Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021
The Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021 amends the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 to clarify that the 2016 Act provides for registration of all child sex offenders, irrespective of whether offending occurred before or after the Act came into force.
The Act is a simple amendment which passed a Third Reading on the day that it was introduced to the House as a Bill, with no need to go to Select Committee.
Child Support Amendment Act 2021
This Act amends the Child Support Act 1991. The 1991 Act established the child support scheme, which helps to provide financial support for more than 185,000 New Zealand children. The main changes established through the Child Support Amendment Act 2021 are to:
- simplify the penalty rules;
- introduce employer deductions of child support for parents who are newly liable under the scheme;
- limit retrospective reassessments by introducing a 4-year time bar for reassessing child support; and
- create a wider definition of "income" for child support purposes.
The Act also makes a number of technical amendments to assist with the administration of the child support scheme.
Climate Change Response (Auction Price) Amendment Act 2021
This Act builds upon the reforms put in place by the Clime Change Response (Emissions Trading Reform) Amendment Act 2020. A key element of this new Amendment Act is it enables a confidential reserve price to be set for auctions in the New Zealand Emissions Trading Scheme. The setting of a confidential reserve price ensures that units cannot be sold at prices which are significantly below secondary market prices.
Key provisions of the Act include:
Food (Continuation of Dietary Supplements Regulations) Amendment Act 2021
- the enabling of the Minister for Climate Change to set a methodology to be used to calculate a confidential reserve price (CRP);
- the requirement of an auction operator to use the methodology to calculate a CRP for an auction;
- the requirement that the methodology and the CRP be kept confidential; and
- the disallowing of sales of units if an action's final clearing price was less than its CRP.
The Food (Continuation of Dietary Supplements Regulations) Amendment Act 2021 extends the expiry date of the Dietary Supplements Regulations 1985 (Regulations) by 5 years, from 1 March 2021 to 1 March 2026.
The Act ensures continued consumer access to dietary supplements until the time when a new regulatory regime is put in place. A replacement regime is being developed by the Ministry of Health in association with the Ministry for Primary Industries. However, the replacement regime was not able to be implemented before the expiration of the original regulations on 1 March 2021.
Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021
The Holidays Act 2003 provides for a three-day bereavement leave period after the death of a child. However, it does not make clear whether this includes unborn children or developing embryos. The Amendment Act clarifies that the bereavement leave entitlement includes the entitlement to leave following the end of a pregnancy by way of miscarriage or still birth. The Act also makes clear that proof of pregnancy is not required for an employee to take bereavement leave, and clarifies that non-biological parents (ie those planning to adopt and parents having a baby through surrogacy) are also entitled to bereavement leave.
Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill
The Local Electoral Act 2001 provided that if a council resolves to establish wards or constituencies for electors on the Māori electoral roll, a local referendum on whether Māori wards or Māori constituencies should be established must be held if at least 5% of the electors of the city, district, or region demand one. These polls were proven to be an almost insurmountable barrier to improving Māori representation in local government and, in some cases, a deterrent to local authorities considering establishing Māori wards or Māori constituencies.
The Amendment Act removes the referendum provision, and therefore brings the Act more in line with the Crown's obligations under te Tiriti o Waitangi. Key outcomes of the Amendment Act are:
- alignment of the treatment of Māori wards and Māori constituencies with the treatment of general wards and general consistencies, as far as possible;
- removal of all mechanisms for binding polls to be held on whether Māori wards or Māori constituencies will be established; and
- provision to local authorities of an opportunity to make decisions on Māori wards and Māori constituencies, in light of these changes, in time for the 2022 local elections.
Local Government (Rating of Whenua Māori) Amendment Act 2021
This Act aims to support the development and provision of housing on Māori land and to modernise rating legislation affecting Māori land, such as the Local Government (Rating) Act 2002. The main provisions of the Act include giving local authorities powers to write off arrears that cannot be reasonably recovered, the extension of the categories of non-rateable land, and the removal of the two-hectare limit.
Ngāti Hinerangi Claims Settlement Act 2021
On 4 May 2019, a deed of settlement was signed between the Crown and Ngati Hinerangi. This deed is the final settlement of all the historical Treaty of Waitangi claims of Ngati Hinerangi resulting from acts or omissions by the Crown before 21 September 1992. The Act gives effect to certain matters contained in the deed of settlement and records the acknowledgements and Crown apology given.
Regulatory Systems (Transport) Amendment Act 2021
This omnibus Act aims to maintain the effectiveness and efficiency of the regulatory system established by transport legislation such as the Land Transport Act 1998 and the Maritime Transport Act 1994. It addresses regulatory duplication, gaps, errors and inconsistencies within this transport legislation. The Act aims to reduce chance of regulatory failure, ensure regulators have effective tools to keep the regulation up to date and relevant, and remove unnecessary compliance costs.
Secondary Legislation Act 2021
This Act alters the law relating to the making of secondary legislation. It implements a framework for the making, publication and parliamentary oversight of the secondary legislation provided for by the Legislation Act 2019 in one place rather than in hundreds of separate Acts.
Taxation (Annual Rates for 2020-21, Feasibility Expenditure, and Remedial Matters) Act 2021
This Act provides that the annual rates of income tax for the 2020-21 tax year are to remain unchanged from the previous tax rates. The Act also has a number of proposals aimed at improving current tax settings, and modernising and improving settings for tax administration, the GST regime, KiwiSaver, and social policy rules administered by Inland Revenue. For example, the Act clarifies when taxpayers are able to deduct expenditure incurred when considering the feasibility of making investments in assets or new business models and tightens the rules in relation to habitual buying and selling of homes and premises. In addition, the Act allows farmers to spread income where they have derived unexpected income from the culling of herds.
Taxation (COVID-19 Resurgence Support Payments and Other Matters) Bill
This Act amends the COVID-19 resurgence support payments scheme by amending the Tax Administration Act 1994 and the Income Tax Act 2007. This aims to assist with the impacts of further COVID-19 outbreaks where there is an escalation in alert levels for a week or longer, and people or businesses suffer a 30% drop in revenue over a 7-day period as a result. This Act also sets the minimum family tax credit threshold for the 2021-22 and later tax years to allow beneficiaries to work a greater number of hours before their benefit reduces.