Matter of opinion
Following the Money – the importance of Electoral Law to NZ's constitution
With over a year to go until the next election, electoral law is unlikely to be at the forefront of many voters' minds. However, this area is certainly keeping all three branches of government busy with consideration being given to the political donations process, overseas voting, the voting age, and the length of the Parliamentary term. Given the number and wide breadth of reforms being contemplated, there is the potential for the largest overhaul of the electoral system to date, with significant implications for the future.
The judiciary has been engaged in high-profile cases involving the voting age and political donations.
In 2020 the advocacy group 'Make it 16' filed proceedings with the Court, seeking a declaration that preventing 16- and 17-year-olds from voting is unjustified age discrimination under the New Zealand Bill of Rights Act 1990. The claim was dismissed by the High Court and Court of Appeal, but the Supreme Court has yet to release its judgment.
The High Court has also been occupied with two cases involving three of New Zealand's political parties. In both cases, the charges concern political donations and an alleged failure to comply with the Electoral Act, our primary piece of electoral law.
In the first of these cases, with the High Court's judgment released recently, two men long associated with the New Zealand First Party were charged under the Crimes Act 1960 and accused of deceitfully obtaining nearly $750,000 of political donations via their New Zealand First Foundation; which gathered donations to support the New Zealand First Party. The men (who were granted name suppression) were found not guilty, as the donations could not be considered 'party donations' given they were made to people not involved in the administration of the New Zealand First Party, irrespective of whether they were intended to benefit the party. The issue here stems from the narrow definition of "party donations" under the Electoral Act, which has been picked up in relation to the current Electoral Amendment Bill before Parliament, discussed below. Further, the Court noted that, while there is an obligation on a person receiving money on behalf of a political party to transfer this to the party secretary within 10 days, there is no penalty for violation of this.
The second case is an ongoing 10-week trial involving donations by a group of individuals to Labour and National (because the three people on the donor side are the same, the two trials are being held together). As in the New Zealand First Foundation case, the defendants (the donors and former MP Jami-Lee Ross) are charged under the Crimes Act with deceit. However, in the current case, the donations to Labour and National – totalling $35,000 and $200,000 respectively – are alleged to have been fraudulently 'split' across donors to avoid triggering the Electoral Act's name disclosure threshold of $15,000. Whether the High Court will take a prescriptive approach in interpreting the Electoral Act and the definition of 'donor' (similar to the interpretation of 'party donation' in the New Zealand First Foundation case) or a more purposive approach, remains to be seen.
Though both cases are factually different, they highlight the importance of transparency around political funding. These cases may be indicative, when viewed in conjunction with the legislative changes (discussed below) of increased security and an enhanced of the role of the three branches of government in ensuring this electoral law principle is understood and upheld.
Simultaneously, newly appointed Justice Minister, Hon Kiri Allan, is continuing the work of her predecessor, Hon Kris Faafoi, in introducing targeted legislative changes to the Electoral Act 1993 that will take effect prior to the 2023 General Election. The Electoral Amendment Bill, which is before the Justice Select Committee, proposes a number of changes increasing transparency around political donations, including lowering the donor identity disclosure thresholds from $15,000 to $5,000, and requiring political parties to report non-anonymous donations under $1,500 and produce their financial statements. Minister Allan has also announced that she will introduce a Supplementary Order Paper to the Electoral Amendment Bill which will clarify the definition of party donation and impose criminal liability in situations like the New Zealand First Foundation case. Further, the Supplementary Order Paper will create a penalty for the failure to transfer political donations to a party secretary within 10 days. The Bill has the support of the Green Party and Te Paati Māori, but is opposed by National and ACT (though the latter agree that the 'party donation' definition needs to be amended).
Once in force, both the lowered disclosure thresholds and the amended 'party donation' definitions, will directly address the issues raised in both High Court cases, making it increasingly difficult for the behaviours alleged to avoid criminal liability.
Recognising the impacts of Covid-19 on overseas Kiwis and their ability to return home, the Electoral Amendment Bill will also extend the eligibility period for overseas voters from three to six years for citizens, and from one to four years for residents. This allows voters unable to return home over the past several years to exercise their democratic rights and participate in the 2023 General Election (though this extension will expire after that election).
These more immediate changes are working in tandem with wider electoral law reform. In May 2022, then Justice Minister Faafoi appointed an independent panel to lead a review into New Zealand's electoral law, with a broad scope to make recommendations on various areas of electoral law, including the voting age, overseas voting, the roles of the Serious Fraud Office and New Zealand Police, the ratio of electorate seats to list seats, and the funding of political parties. The Government's rationale for this review is that the Electoral Act – almost 30 years after its creation – is outdated and creates a barrier to modern electoral administration that has not been substantively addressed.
The independent panel of six, chaired by Deborah Hart (former lawyer and Chair of the Consumer Advocacy Council and Holocaust Centre of New Zealand) will report back to the Minister of Justice in November 2023, following an 18-month review that involves public engagement at all stages. Ms Hart has recognised the difficulty in changing New Zealand's electoral law, given it is so intertwined and that changes to one area will necessarily have consequences in other areas. For example, lengthening the term of Parliament to four years will mean that some young voters are 22 before they can vote for the first time, which may not be consistent with the principles of our electoral law.
The global context of electoral law should not be ignored in these reforms. For the past several years, disinformation and interference in elections has been steadily increasing, which has the potential to undermine the legitimacy of democratic processes and election results. In response to this, governments around the world have acted to highlight these issues and strengthen their electoral institutions.
Electoral law affects all voters and their ability to engage in arguably the most important element of our democracy, the right to choose their representatives and government. The importance of electoral law's transparency, consistency and security is at the heart of our constitution; it underpins the legitimacy and trust that our government and Parliament enjoy. The ongoing judicial consideration, legislative reform and government review of electoral laws highlight this integral nature of electoral law.
In the news
Ministerial Advisory Board for Treaty Settlements under new resource management laws
The process of settling historic claims for breaches of the Treaty of Waitangi is undertaken by the Government through Treaty settlements. An outcome of this has been the provision of co-governance and co-management arrangements over significant natural resources and reserve lands. A Ministerial Advisory Board (Board) has been established to help ensure existing Treaty settlements are upheld under the new resource management system.
The Resource Management Act 1991 (RMA) is the central piece of legislation for the management of natural and physical resources. The RMA currently interfaces with over 60 pieces of Treaty of Waitangi settlement legislation. Those exercising functions under the RMA are to do so taking into account the principles of the Treaty of Waitangi. The RMA is to be replaced by three new laws (Natural and Built Environments Act, Spatial Planning Act and Climate Adaption Act). The Board has been appointed to identify and address emerging issues and challenges with the new legislation and to ensure that the Treaty settlement process continues to be conducted in a robust and good faith manner.
It is anticipated that the three Acts will work together to deliver a resource management system that better protects and restores the environment, enables development and gives effect to the principles of the Treaty of Waitangi. The Board members have been selected for their expertise on the Treaty of Waitangi and understanding of resource management and its importance for Māori. The members are Karen Vercoe, Lisa Tumahai, Andrew (Anaru) Luke and Maui Solomon. The Board will not advise on individual Treaty settlements or speak on behalf of post-settlement governance entitles (PSGEs) and will continue to work with PSGEs.
Climate Change Commission's recommendations on the Emissions Trading Scheme settings
In July, He Pou a Rangi – the Climate Change Commission provided advice to the Minister of Climate Change, James Shaw, on the New Zealand Emissions Trading Scheme (ETS) unit limits and price control settings for the next five years (2023 – 2027). That advice was then presented to the House.
The ETS aims to reduce greenhouse gas emissions by:
requiring businesses to measure and report on their greenhouse gas emissions;
requiring businesses to surrender one 'emissions unit' (or NZU) to the Government for each one tonne of emissions they emit and
limiting the number of NZUs available to emitters (ie that are part of the ETS).
ETS settings are updated annually. This is the first time that the Commission has provided advice to the Government to assist with the update, following changes to the Climate Change Response Act 2002 in 2020, which inserted a new requirement for the Commission to provide such advice.
After engagement with a range of ETS market participants and other stakeholders, the Commission recommends:
reducing the limit on the number of units available for auction;
raising the trigger prices for the cost containment reserve and auction reserve price; and
changing to a two-tier cost containment reserve from 2023.
The Commission also urged the Government to clarify how it will ensure the ETS is fit to deliver the outcome of prioritising gross emissions reductions, and the role the ETS will play to contribute to reducing global emissions under the Paris Agreement.
Government officials will now consider the advice before the public consultation which is planned for September of this year.
On 28 July 2022, the Government announced that it is co-funding the N-Vision NZ programme, an initiative aimed at significantly reducing agricultural greenhouse gases and nitrate leaching, and will be contributing $7.3 million to it over seven years. This contribution will be made through the Ministry for Primary Industries’ Sustainable Food and Fibre Futures (SFF Futures) fund. The programme is led by Ravensdown, who will be contributing $11 million, while Lincoln University and Plant & Food Research will provide the research expertise.
The N-Vision NZ programme aims to further reduce the environmental impact of New Zealand agriculture by helping farmers to reduce nitrogen loss. Ravensdown General Manager of Innovation and Strategy, Mike Manning, explained:
“Lincoln University researchers have discovered natural strains of fungi that reduce the activity of specific microbes, which are involved with nitrogen cycling and losses. These nitrogen losses can occur as nitrate leaching through the soil, which has potential detrimental effect on waterways, and as nitrous oxide, a potent greenhouse gas emission… the fungi can be applied to soil as either a prill or seed coating. Doing so increases the level of the fungi and therefore alters the nitrogen cycle to reduce nitrogen losses. Research to date indicates this has a strong potential to mitigate both greenhouse gas emissions and reduce nitrogen loss to waterways.”
The initiative focuses on three technology streams:
N-Retain: a new technology that will look at new ways to block the biological processes in the soil that lead to nitrous oxide emissions and nitrate leaching.
N-Test: a new soil test to inform nitrogen fertiliser decisions on pastoral farms, which will help capitalise on the nitrogen already in the soil organic matter, potentially reducing the level of nitrogen fertiliser needed.
N-Bio Boost: a fungal bio-inoculant to increase nitrogen use efficiency, which will examine how naturally occurring fungi boost the nitrogen efficiency of plants as another way to future-proof productivity.
While Ravensdown will be leading the programme, the resulting products and technology will be made available beyond Ravensdown's customer base, in order to help all farmers maintain profit levels while minimising environmental impact of their land use.
Update on New Zealand's response to the Ukraine war
New Zealand is continuing its response to Russia's invasion of Ukraine, utilising both the legislative and policy tools at its disposal. Further sanctions under the Russian Sanctions Act 2022 have been placed on:
disinformation and cyber actors;
relatives of sanctioned individuals;
Belarusian individuals and entities, including President Lukashenko;
additional entities funding the war in Ukraine; and
the Russian Armed Forces and 63 entities that support the Russian military.
The import of Russian gold into New Zealand has been banned, in an effort to prevent Russia using New Zealand as a haven for its assets and utilising its large gold reserves to support the rouble. The move follows similar announcements from the United States, United Kingdom, Canada, Japan and Australia.
New Zealand has also joined Ukraine's case against Russia at the International Court of Justice, in which Ukraine argues Russia falsely claimed a genocide occurred in the Donbas regions in order to justify its invasion. Through its intervention as a third party, New Zealand will be able to put its legal views on the interpretation of the Genocide Convention before the court – which the Government has signalled will align with Ukraine's view. New Zealand has only joined an action at the International Court of Justice once before, in Australia's 2012 case against Japanese whaling.
Te Tahua Whakamarohi i te Rāngai Ahurea | Cultural Sector Regeneration Fund
The first stage of the Government's new approach to cultural sector funding, the Cultural Sector Regeneration Fund, opened on 27 July 2022. Using money remaining from the Arts and Culture COVID Recovery Programme, the Regeneration Fund seeks to support strategic and sector-led culture and arts initiatives in New Zealand.
The Fund includes $28 million, which is available to support those applicants that can best demonstrate the potential for their initiative to contribute to the Fund's five outcomes:
improving sustainability and resilience of the arts, culture and heritage sectors;
improving safeguarding of Mātauranga Māori and support of Toi Māori;
improving access and participation in arts, culture and heritage sectors;
increasing the use of arts, culture and heritage as a tool to improve wellbeing; and
increasing employment and skill development opportunities.
During the first phase of Te Tahua Whakamarohi I te Rāngai Ahurea, which runs between 27 July and 7 September 2022, applicants may submit expressions of interest to Manatū Taonga | Ministry for Culture & Heritage. This will be followed by three evaluation rounds, with final funding decisions to be determined by late June 2023, according to the indicative timeframe. Manatū Taonga has suggested that only funding initiatives with milestones completed by June 2024 will be considered. You can find more information on the Cultural Sector Regeneration Fund, including how to apply, here.
New Zealand's international border has opened to all visitors, including international students, cruise ships, and individuals from non-visa waiver countries.
Since 11:59pm 31 July 2022, previously suspended visa categories have resumed, and international students and visitors from non-visa wavier countries are now able to apply for a visa to enter New Zealand. New Zealand's maritime border has also opened to cruise ships, specialist vessels and recreational vessels.
Visitors entering New Zealand will still need to comply with vaccination requirements (proof of full dose of an approved vaccine), testing requirements, the COVID-19 Protection Framework (traffic light), and isolation requirements if they test positive for Covid-19 after arriving in New Zealand.
The Government expects many international tourists to arrive within 6 months of the borders opening, and has been helping New Zealand tourism operators to prepare for their return with the $49 million Tourism Kick-start Fund.
New Zealand and the European Union conclude negotiations on a free trade agreement
On 30 June 2022, New Zealand and the European Union (EU) concluded negotiations on a free trade agreement (NZ-EU FTA). The New Zealand Government has described the NZ-EU FTA as a strategically important and economically beneficial deal that comes at a crucial time in New Zealand's export-led COVID-19 recovery.
The New Zealand Government expects that by 2035 the NZ-EU FTA could increase exports to the EU by up to $1.8 billion per annum and generate an extra $1.4 billion to New Zealand's GDP per annum. Once fully implemented, the NZ-EU FTA is expected to deliver more to NZ GDP than the United Kingdom Free Trade Agreement.
This expected increase will be driven primarily by 91% of New Zealand's current goods exports entering the EU duty-free, through tariff elimination or duty-free quotas. This will rise to 97% after seven years. Other key aspects of the NZ-EU FTA include:
Immediate tariff elimination for all New Zealand kiwifruit, wine, onions, apples, mānuka honey and manufactured goods, as well as almost all fish and seafood, and other horticulture products.
Additional quota access for New Zealand beef and dairy.
High standards, rules and commitments intended to support the growth and development of trade in services between New Zealand and the EU. New Zealand service providers will be able to access the EU market on an equivalent basis to local and foreign service providers in a range of sectors.
An Annex on the movement of natural persons for business purposes. This contains commitments to facilitate the processing of applications for entry and temporary stay.
Investment provisions incorporate modern investment protection rules, which are intended to provide certainty and stability regarding market access for investors and support the growth of two-way investment between the EU and New Zealand. Consistent with New Zealand policy, the NZ-EU FTA does not include investor-state dispute settlements.
A trade and sustainable development chapter containing overarching principles re-stating the commitment of both parties to strive for high levels of environment and labour protection.
A Māori trade and economic cooperation chapter. This chapter identifies several cooperation areas to enhance the ability for Māori to access the benefits from the NZ-EU FTA, develop business links between Māori and EU enterprises (with a particular emphasis on SMEs), and to strengthen science, research and innovation connections.
Provision for cooperation between the EU and New Zealand on Sustainable Food Systems. This chapter creates a platform for cooperation on issues spanning the food system with the aim of working together across the economic, environmental, social, and cultural bases of the system to improve food security and nutrition for future generations.
Rules on how subsidies can be used. Most significantly for New Zealand, it will contain a commitment by both parties to refrain from providing harmful fisheries subsidies – this being the first time the EU has made such a commitment in a bilateral FTA. The EU has also agreed to a special consultation mechanism that goes beyond existing World Trade Organisation processes for New Zealand to raise concerns with agricultural subsidies.
The Government expects that the NZ-EU FTA will enter into force by 2024, subject to both parties completing all required domestic processes.
Progress of ratifying the UK-NZ Fair Trade Agreement
New Zealand is a step closer to free trade with the United Kingdom, with the United Kingdom Free Trade Agreement Legislation Bill having its first reading in Parliament on 26 July 2022. This bill will bring the United Kingdom Free Trade Agreement (UK FTA) into force.
The UK FTA has been a long time coming for New Zealand. Preparations for the UK FTA began in 2017, with negotiations commencing in June 2020, predominantly virtually, as a result of the COVID-19 pandemic. An agreement-in-principle was reached in October last year, with New Zealand and the United Kingdom signing the UK FTA on 1 March 2022. We outlined the key aspects of the UK FTA in a previous edition of Watching Brief here.
The UK FTA will eliminate almost all tariffs on New Zealand exports to the United Kingdom and aims to ensure inclusive and sustainable trade, including outcomes for Māori, women in trade, and the environment. Importantly, significant duty-free quotas for key products such as meat, butter and cheese will be introduced when the UK FTA comes into force, alongside specific commitments addressing climate change action. New Zealand will also remove all tariffs on United Kingdom products, and the screening threshold under the Overseas Investment Act 2005 will increase from NZ$100 million to NZ$200 million for non-governmental investors from the United Kingdom. Estimates are that the UK FTA will boost the New Zealand economy by up to $1 billion.
The United Kingdom Free Trade Agreement Legislation Bill is currently before the select committee, with the Foreign Affairs, Defence and Trade Committee now seeking public submissions on the bill, with submissions due on 21 August 2022.
The Government is aiming to complete New Zealand's ratification processes by the end of this year, with the expectation that the United Kingdom Parliament will ratify the UK FTA at a similar time. Once both New Zealand and the United Kingdom have completed their ratification processes, the UK FTA will come into force.
In the House
What’s coming up in the House
Parliament will resume sitting on Tuesday 9 August 2022.
Legislation to be considered will include:
the remaining stages of—
- the Firearms Prohibition Orders Legislation Bill; and
- the Overseas Investment (Forestry) Amendment Bill;
the second reading of the Maniapoto Claims Settlement Bill;
the committee stage of the Oversight of Oranga Tamariki System and Children and Young People's Commission Bill; and
the third reading of the Three Strikes Legislation Repeal Bill.
The Estimates debate will also begin, and there will be an extended sitting on the morning of Thursday 4 August 2022.
Progress of legislation
Accessibility for New Zealanders Bill
Type of Bill: Government
Member in charge: Hon Poto Williams
This Bill proposes a new legislative framework that aims to provide a consistent methodology to address systematic barriers that prevent disabled people, tāngata whaikaha, and their family and whānau, and others with accessibility needs from living independently and participating in all areas of life, and to grow accessibility practices across New Zealand. The objectives of this Bill are to:
provide a consistent and clear methodology for addressing systematic accessibility barriers;
grow accessibility practices;
build knowledge and awareness about the importance of accessibility barriers;
represent the voices of disabled people, tāngata whaikaha, and their family and whānau, and others with accessibility needs;
be flexible and progressive; and
give effect to the principles of Te Tiriti o Waitangi.
The Bill would create a new leadership structure that establishes a ministerial advisory committee led by disabled people, tāngata whaikaha, and their family and whānau. This is accompanied by the chief executive of Whaikaha – Ministry of Disabled People and the Minister for Disability Issues.
This Bill passed through first reading on the 2 August 2022 and was referred to the Social Services and Community Committee.
Aotearoa New Zealand Public Media Bill
Type of Bill: Government
Member in charge: Hon Willie Jackson
This Bill seeks to establish a new autonomous Crown entity called "Aotearoa New Zealand Public Media" (ANZPM). The Bill provides that on commencement, Radio New Zealand and Television New Zealand would become subsidiaries of ANZPM and their employees in turn would become employees of ANZPM. The Bill proposes a number of objectives and requirements, including but not limited to:
the creation of a Charter;
obligations through governance arrangements to the delivery of its Charter, and to give effect to Te Tiriti o Waitangi;
be editorially independent;
maximise access to content;
to work collaboratively across the media sector;
be governed by a board that has skills and experience relating to financial management and te ao Māori and tikanga Māori; and
be held to account to for the delivery of its Charter.
This Bill passed its first reading on 26 July 2022 and has been referred to the Economic Development, Science and Innovation Committee.
Appropriation (2022/23 Estimates) Bill
Type of Bill: Government
Member in charge: Hon Grant Robertson
This Bill seeks parliamentary authorisation of the individual appropriations contained in the Estimates of Appropriations for the Government of New Zealand for the Year Ending 30 June 2023. Appropriations provide a Minister with the authority form Parliament to spend public money or incur expenses or liabilities on behalf of the Crown.
Companies (Levies) Amendment Bill
Type of Bill: Government
Member in charge: Hon Dr David Clark
This Bill will amend the Companies Act 1993 to create a new regulation making power that will expressly provide the New Zealand Companies Office with the power to use money collected through levies to fund the registry system as a whole, rather than on a register-by-register basis.
Customs and Excise (Child Sex Offender Register Information Sharing) Amendment Bill
Type of Bill: Member's
Member in charge: Erica Stanford
This Bill aims to protect vulnerable children and young people from harm to ensure that individuals listed on the New Zealand Child Sex Offender registry are subject to Custom Service Border Alerts. The Bill would amend the Customs Excise Act 2018 by providing a provision for the exchange of information between Customs and Police to ensure that Police are able to locate registered child sex offenders and monitor their compliance with their registration requirements under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. The Bill's objective is to act as a safeguard to make sure the destination jurisdiction would receive important travel alert information.
Electoral Amendment Bill
Type of Bill: Hon Kiritapu Allan
Member in charge: Government
This Bill seeks to amend New Zealand's electoral legislation to increase transparency around political donations, extend the ability of New Zealanders overseas to vote in the 2023 General Election, and allow for the regulated election period to shift if the election date shifts. In respect of political donations, the Bill:
lowers the public disclosure threshold for donations and contributions to political parties from $15,000 to $5,000;
amends the reporting requirements for donations received from the same donor exceeding $30,000 by reducing the threshold to $20,000 and requiring disclosure of such donations within 10 working days only in a general election year;
requires parties to report donations under $1,500 that are not made anonymously;
requires a return of party donations to specify the total amount of all donations received in money and the total amount of donations received other than in money;
requires all parties to disclose their financial statements; and
requires candidates to publicly report on loans received to support their campaign.
The Bill also lengthens the period of time overseas New Zealand citizens must have been in New Zealand in order to vote from 3 years to 6 years for citizens and 4 years for permanent residents. This measure is only temporary, and applies for the 2023 General Election. Any permanent changes to the eligibility criteria may be considered by the independent review of electoral law, due to report back at the end of 2023.
Electoral (Māori Electoral Option) Legislation Bill
Type of Bill: Government
Member in charge: Hon Kiritapu Allan
This omnibus Bill would provide Māori with the ability to change electoral rolls, at any time and without restrictions on the number of times they choose to change. This Bill would replace the current four-month option period for Māori to choose which electoral roll they are registered to with a continuous option model. This Bill would also amend the calculations used to calculate the Māori electoral population in the Electoral Act 1993 and the Local Electoral Act to be calculated at the day of the census.
Electoral (Right to Switch Rolls Freely) Amendment Bill
Type of Bill: Member's
Member in charge: Rawiri Waititi
This Bill will amend the Electoral Act 1993 to enable Māori voters to switch between the Māori and non-Māori electoral rolls at any time. Currently, there are only two opportunities for Māori to choose electoral rolls: at the time of initial enrolment or during the Māori electoral option period (which only takes place every five to six years). This Bill would increase these opportunities. The Bill proposes several changes including:
allowing Māori to change between the Māori and non-Māori electoral rolls at any time by advising the Electoral Commission of their choice;
changing the periodic requirement to redraw electoral boundaries to a set date no later than two years after each general election (instead of only after each census);
introducing a legislative requirement where if someone states that they are Māori but do not choose an electoral roll when enrolling, they are automatically placed on the Māori roll; and
changing the name of 'general electoral district' to 'non-Māori electoral district'.
Electoral (Strengthening Democracy) Amendment Bill
Type of Bill: Member's
Member in charge: Golriz Ghahraman
This Bill would amend the Electoral Act 1993. The reforms are either the result of recommendations from the Electoral Commission or intended as a response to recently highlighted shortcomings in the Act. The seven areas of reform in the Bill would:
enable voters of Māori descent to change roll type at any time;
extend the voting age to 16 years;
remove the requirement for New Zealand citizens livings overseas to have visited New Zealand within the last three years to maintain their voting rights;
give all people in prison the right to vote;
implementing transparency and safeguards on donations to parties and candidates; and
extend the reserved provisions to include all provisions that reduce eligibility to register as an elector or to vote an election.
Family Court (Family Court Associates) Legislation Bill
Type of Bill: Government
Member in charge: Hon Kiritapu Allan
This omnibus bill proposes the creation of the new role of Family Court Associate (FCA) aimed to reduce delay in the Family Court by taking on some of the Family Court Judges' workload. This role is based on the recommendation made in the Te Korowai Ture ā-Whānau Report produced by the independent panel commissioned to examine the 2014 Family Court reforms. A FCA would be a judicial officer, and therefore independent of the Executive and have additional powers to those of a Registrar. A FCA would be able to take on some administrative work currently undertaken by Judges, including decisions made at the early stages of the proceeding. This is aimed to enable judges to focus on progressing casework and making substantive decisions in proceedings which will continue to be made by judges.
This Bill passed its first reading on the 2 August 2022 and was referred to the Justice Committee.
Foreign Affairs (Consular Loans) Amendment Bill
Type of Bill: Government
Member in charge: Hon Nanaia Mahuta
This Bill intends to provide express statutory authority for the Minister of Foreign Affairs to continue the practice of issuing consular loans to New Zealand citizens and permanent residents where exceptional circumstances exist, as amendments made to the Public Finance Act 1989 in 2013 now require express statutory authority. The Bill will also validate consular loans made by the Ministry after the Public Finance Act was amended in 2013 and before the Ministry received delegated authority in 2020 to lend money.
The Bill passed its first reading on 26 July 2022 and was referred to the Foreign Affairs, Defence and Trade Committee.
Forests (Legal Harvest Assurance) Amendment Bill
Type of Bill: Government
Member in charge: Hon Stuart Nash
This Bill would establish a new regulatory system for providing legal harvest assurance for forestry and wood-processing sector. This Bill proposes that timber importers, exporters, log traders and primary processors would be required to register and establish due diligence systems to demonstrate that timber has been legally harvested.
Housing Infrastructure (GST-sharing) Bill
Type of Bill: Member's
Member in charge: Brooke van Velden
This Bill would introduce a GST-sharing scheme to fund infrastructure across New Zealand. The Bill proposes that the Government share 50 percent of the GST revenue of a new house with the local council that issued the consent to help them cover the infrastructure costs associated with new housing developments.
Increased Penalties for Breach of Biosecurity Bill
Type of Bill: Member's
Member in charge: Hon Jacqui Dean
This Bill seeks to deter offenders from bringing illegal biosecurity risk items such as fruit or other food to our border. The Bill proposes to achieve this by:
increasing the immediate fine from $400 to $1000; and
giving officers stronger authority to refuse entry to New Zealand to people who knowingly bring in a biosecurity risk when attempting to enter on a temporary entry class visa.
Local Government Electoral Legislation Bill
Type of Bill: Government
Member in charge: Hon Nanaia Mahuta
This omnibus Bill has been introduced with the aim of improving the processes of representation and participation in local government elections. The Bill proposes to:
provide local authorities with a revised process for deciding their representative arrangements that makes the consideration of specific Māori representation a fundamental step in that process;
change the current restriction on the number of councillors on Auckland Council;
simplify the process for unitary authorities to adjust local board boundaries;
update the process for when an election result is tied; and
enable all candidates to submit electronic nominations.
This Bill had its first reading on the 2 August 2022 and was referred to the Governance and Administration Committee.
Overseas Investment (Forestry) Amendment Bill
Type of Bill: Government
Member in charge: Hon David Parker
This Bill will amend the Overseas Investment Act 2005. The main proposed change under the Bill is the removal of the ability for overseas investors to rely on a simplified, and more permissive, consent process under the Act when they seek to convert land into production forestry land. Under the existing regime, the special forestry test applies where the land will be used almost exclusively for forestry activities, is not solely residential land, will not be used, or held for future use, for residential purposes (except providing lodgings for the forestry activities). If the special forestry test applies, certain components of the generally applicable 'benefit to New Zealand' test do not apply. The Bill would remove the ability for overseas investors to rely on the special forestry test when seeking to convert farm land or other land to forestry. Instead, these applications would be assessed under the benefit to New Zealand test, which is less permissive.
This Bill had its first reading on 7 June 2022 and the Finance and Expenditure Select Committee reported back on the 1 August 2022.
Prohibition on Seabed Mining Legislation Amendment Bill
Type of Bill: Member's
Member in charge: Debbie Ngarewa-Packer
This Bill would put in place a nationwide ban on seabed mining consents within the Exclusive Economic Zone and New Zealand's coastal waters. It would prohibit the ability to apply for exploration rights for seabed mining under the Crown Minerals Act 1991, and would also retrospectively withdraw existing seabed mining consents and exploration rights under the Crown Minerals Act and Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
Repeal of Good Friday and Easter Sunday as Restricted Trading Days (Shop Trading and Sale of Alcohol) Amendment Bill
Type of Bill: Member's
Member in charge: Chris Baillie
This Bill seeks to remove restriction on trading and selling alcohol on Good Friday and Easter Sunday. Currently on these days businesses are prevented from opening or are restricted in their operations. Removing these restrictions means that trading will be permitted throughout these days. This will allow businesses to self-determine which days they would like to open. The Bill retains the existing employee protections under the Shop Trading Hours Act 1990 that apply in respect of Easter Sunday and extends these protections to Good Friday.
This Bill was defeated at its first reading on 3 August 2022.
Sale and Supply of Alcohol (Harm Minimisation) Amendment Bill
Type of Bill: Member's
Member in charge: Chloe Swarbrick
This Bill would amend the Sale and Supply of Alcohol Act 2012, to further address the objective in the Act of minimising the harm caused by the excessive or inappropriate consumption of alcohol.
The Bill seeks to make two changes to the Act. First, it would abolish appeals on local alcohol policies in order to provide local control over alcohol regulation. Second, the Bill would implement a number of recommendations of the 2014 Ministerial Forum on Alcohol Advertising and Sponsorship, through banning alcohol sponsorship and advertising of all streamed and live sports, and at all sporting venues.
Secondary Legislation Bill
Type of Bill: Government
Member in charge: Hon Chris Hipkins
The purpose of this Bill is to prevent certain instruments being revoked automatically at a stated time unless earlier confirmed by an Act of Parliament. This Bill would confirm instruments under both the Legislation Act 2012 and the Legislation Act 2019 and instruments made in the period starting on July 1 2021 and ending with the close of 30 June 2022.
This Bill had its first reading on 2 August 2022 and was referred to the Regulations Review Committee
Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Bill
Type of Bill: Government
Member in charge: Hon Dr Ayesha Verrall
This Bill would amend the Smokefree Environments and Regulated Products Act 1990 and the Customs and Excise Act 2018 to seek to achieve the following objectives:
Reducing retail availability: new provisions would restrict the sale of smoked tobacco products to retailers approved by the Director-General of Health, set out the criteria to be an approved retailer and provide for a set maximum number of retail premises allowed in a certain area.
Amending the age limits for sale of smoked tobacco products: new provisions would introduce a smokefree generation policy by prohibiting the sale of smoked tobacco products to any born on or after 1 January 2009.
Reducing the appeal and addictiveness of smoked tobacco products: new provisions would require that only smoked tobacco products that meet the requirements for constituents would be able to be manufactured, imported, or offered for sale or supply, and would make it an offence for any smoked tobacco products to contain constituents exceeding any limits prescribed in, or prohibited by regulations.
This Bill had its first reading on 26 July 2022 and was referred to the Health Committee.
United Kingdom Free Trade Agreement Legislation Bill
Type of Bill: Government
Member in charge: Hon Damien O'Connor
This Bill will amend four acts, two sets of regulations, and the Tariff of New Zealand, to implement the Free Trade Agreement between New Zealand and the United Kingdom of Great Britain and Northern Ireland (FTA) into New Zealand law. It will also introduce a new regime to administer a transitional apple export quota. We provide a further update on the FTA in the In Trade section above.
Currently, New Zealand's existing domestic legal and policy regime covers most of the FTA's obligations, so a limited number of legislative and regulatory changes are proposed by the Bill. These changes include:
applying the FTA's preferential tariff rates;
implementing transitional quotas on dairy products exported to the UK from New Zealand;
enabling the division of New Zealand's country-specific World Trade Organisation dairy quotas between the UK and European Union (which is required post Brexit);
increasing the investment screening threshold from NZ$100 million to $200 for non-government investors from the UK;
giving effect to the rules of origin applicable to imports into New Zealand from the UK; and
creating a new regime to administer a transitional apple export quota.
Water Services Entities Bill
Type of Bill: Government
Member in charge: Hon Nanaia Mahuta
This Bill intends to establish four publicly owned water entities that will take on the responsibility of drinking water, wastewater and stormwater infrastructure across New Zealand. The Bill contains the ownership, governance and accountability arrangements relating to those entities and provides for transitional arrangements during an establishment period. The proposed entities would be body corporates, and co-owned by the territorial authorities through shares. The proposed governance arrangements of the water services entities are two-tiered comprising of: a regional representative group, which would provide joint oversight of an entity by an equal number of representatives of the territorial authority owners and mana whenua from within the entity's service area; and corporate governance by an independent, competency-based, professional board.
The Bill contains a number of objectives and operating principles that would guide the core functions of the water service entities. The proposed objectives for water services entities include:
deliver water services and related infrastructure in an efficient and financially sustainable manner;
protect and promote health and the environment; and
deliver water services in a sustainable and resilient manner that seeks to mitigate the effects of climate change and natural hazards.
The proposed operating principles for water services entities include:
developing and sharing capability and technical expertise with other water service entities and across the water services sector;
being innovative in the design and delivery of water services and infrastructure;
partnering and engaging with Māori, to give effect to Te Mana o te Wai;
giving effect to Treaty settlement obligations; and
and engaging meaningfully with territorial authorities.
The Bill had its first reading on 9 June 2022 and was referred to the Finance and Expenditure Committee. See our insight article for further analysis.
Bills awaiting first reading
Bills before select committee
Bills awaiting second reading
Committee of the whole House
Bills awaiting third reading
Bills awaiting Royal Assent
Appropriation (2020/21 Confirmation and Validation) Act
This Bill would validate certain expenses and capital expenditure that were incurred for the 2020/2021 financial year in accordance with section 26C of the Public Finance Act 1989. The Bill would also validate expenses and capital expenditure incurred in the 2015/2016, 2016/2017, 2017/2018, 2018/2019 and 2019/2020 financial years by the Inland Revenue Department, Ministry of Business, Innovation and Employment and the Ministry of Education, which were not within the scope of any existing appropriation.
Appropriation (2021/22 Supplementary Estimates) Act
This Bill seeks parliamentary authorisation of the individual appropriations and changes to individual appropriations contained in the Supplementary Estimates of Appropriations for the Government of New Zealand for the Year Ending 30 June 2022. Appropriation is the statutory mechanism by which Parliament authorises the Government to incur expenses and capital expenditure.
Commerce (Grocery Sector Covenants) Amendment Act
The Commerce (Grocery Sector Covenants) Amendment Act was introduced under urgency on Budget Day (19 May 2022) and received its royal asset on 29 July 2022. This Act amends the Commerce Act 1986 ("the Act") by introducing section 28A. This section applies to restrictive or exclusive covenants that have the purpose or effect of impeding the development of land or use of a site for a grocery retail store. It deems those covenants, for the purpose of sections 27 and 28 of the Act, as having the purpose, or having or being likely to have the effect, of substantially reducing competition in the retail grocery market. Section 28A applies to both existing covenants and future covenants, but is limited to covenants which a "designated grocery retailer" has an interest in. The section includes the two largest grocery retailers currently (Woolworths and Foodstuffs) in its definition of "designated grocery retailer". The effect of section 28A is that it makes the covenant unenforceable.
Companies Office Registers Funding Validation Act
This omnibus Act amends 13 different Acts to retrospectively validate fees that have been collected under those Acts that have been or will be applied under any register administered by the New Zealand Companies Office. The Companies Office administers the corporate registry system. There are 16 different registers that were each established under separate legislation, each with a funding model predicated on the registers being operated separately. Over time, the Companies Office has moved to providing shared services to the registers. This Act addresses the Companies Office practice of applying funds collected in fees in a way not authorised by legislation, and enables the Companies Office to apply surpluses it has collected to fund anticipated shortfalls on smaller registers while a new, unified funding regime is established.
Coroners (Coronial Cap) Amendment Act
This Act amends the Coroners Act 2006 to increase the maximum number of coroners (full-time equivalents) that can be appointed at any time from 20 to 22.
Crown Pastoral Land Reform Act
This Act amends the Crown Pastoral Land Act 1998 and the Land Act 1948 to end tenure review, under which some land can be transferred into freehold ownership, and aims to improve the way Crown pastoral land is administered and regulated. The Act aims to ensure that Land Information New Zealand, the department responsible for administering the Crown pastoral land regime, administers Crown pastoral land in a way that maintains or enhances the land’s inherent values that arise from ecological, landscape, cultural, heritage, and scientific attributes or characteristics, while providing for ongoing pastoral farming. The Act:
ends tenure review;
clarifies the outcomes sought by the regulatory system;
reflects the Crown’s obligations under the Treaty of Waitangi;
clarifies how the Commissioner should make decisions on applications for pastoral farming and other activities;
introduces a new monitoring and enforcement regime; and
provides more public involvement in the administration of Crown pastoral land.
Customs and Excise (Tobacco Products) Amendment Act
This Act amends the Customs and Excise Act 2018, and the Excise and Excise-equivalent Duties Table, to ensure that the correct excise and excise-equivalent duty is applied to certain tobacco goods, such as water-pipe tobacco, and to reduce duty evasion. The Act was dealt with under urgency and was therefore passed through its stages without a select committee report. The Act imposes import controls by making water-pipe tobacco a prohibited import that can only be imported with a permit, in accordance with the conditions of that permit. The Act also alters the unit of measurement and rate of excise-equivalent duty that apply to water-pipe tobacco. However, the Act allows consignments of water-pipe tobacco to enter without import controls, and at the pre-amendment rate of duty, if the importer can show that the goods were on their way to New Zealand before 24 May 2022.
Education and Training Amendment Act (No 2)
This Act amends the Education and Training Act 2020 to give effect to a number of new policy decisions. The key amendments include:
giving the Teaching Council’s powers to prosecute breaches of the Act relating to teacher registration, practising certificates, and limited authorities to act;
giving more flexibility to regulate compulsory student services fees charged by tertiary education providers;
enabling National Student Numbers (NSNs) to be used when there is funding to support work-based training;
enabling NSNs to be assigned to students studying for NCEA in certain overseas jurisdictions;
enabling the New Zealand Qualifications Authority to exercise discretion about whether to cancel the registration of a private training establishment in relation to immigration breaches;
expanding the Education Review Office’s mandate to enable it to review professional learning and development; and
introducing a new type of casual vacancy on school boards.
Financial Markets (Conduct of Institutions) Amendment Act
This Act amends the Financial Markets Conduct Act 2013 to ensure that certain financial institutions and their intermediaries comply with an overarching principle of fair conduct, associated duties and regulations, and a fair conduct programme to operationalise that principle. The Act received Royal Assent on 29 June 2022, and is intended to come into force in early 2025, after a transitional period.
The Act is one of the Government's responses to recent reviews of financial institutions which identified significant weakness in the conduct and culture of institutions in New Zealand's financial sector.
The Act imposes many new obligations and introduces a new regime requiring:
banks, insurers and non-bank deposit takers (Financial Institutions) providing relevant services to consumers to be licensed in respect of their general conduct towards customers under a 'financial institution licence'. The licensing regime will be monitored and enforced by the Financial Markets Authority (FMA);
all licence holders and each of their authorised bodies to comply with the standard conditions of their financial institution licence;
financial institutions to establish, implement and maintain effective fair conduct programmes throughout their businesses that ensure they meet the requirement to treat customers fairly;
financial institutions to comply with their fair conduct programme; and
financial institutions and intermediaries involved in the chain of distribution to comply with regulations that regulate incentives. These regulations will be able to prohibit sales incentives based on volume or value targets, for example, bonuses for selling a number of financial products, overseas trips, or leader boards.
The FMA are expecting to accept licence applications in mid-2023. MBIE is currently developing the supporting regulations to the Amendment Act.
You can read our insight here, discussing how the recent UK Financial Conduct Authority position confirming a new consumer duty will influence the New Zealand FMA's expectations and guidance in relation to the Act.
Human Rights (Disability Assist Dogs Non-Discrimination) Amendment Act
This Act amends the Human Rights Act 1993 to include a definition of disability assist dog. It clarifies 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 will be denying the service to that person on the basis of their disability, and therefore discriminating against them. An example of a service that would be affected by the Act is the provision of accommodation. The Act 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 dog.
Imprest Supply (First for 2022/23) Act
This Act will provide the sole financial authority from the start of the 2022/23 financial year until the Appropriation (2022/23 Estimates) Bill is passed. This Act was assented on 29 June 2022.
Income Insurance Scheme (Enabling Developments) Act
This Act was introduced on Budget Day (19 May 2022) and received its royal assent on 24 May 2022. It enables ACC to carry out work to bring an income insurance scheme into operation, should it be established under subsequent legislation. The Act requires ACC to engage with employers, workers and Māori. It also enables information sharing with other government agencies.
Local Electoral (Advertising) Amendment Act
This Act amends the Local Electoral Act 2001 to address safety concerns related to the publication of residential addresses on local election campaign advertisements. The Act amends s 113 of the Act so the address requirement can be met by providing:
Local Government (Pecuniary Interests Register) Amendment Act
This Act amends the Local Government Act 2002. The purpose of this Act is said to be to improve transparency and strengthen public trust and confidence in the decision-making of local authorities. In addition, it will better align transparency requirements of members of local authorities with members of Parliament and the Executive Council. The Act requires local authorities to maintain and publish a register of pecuniary and other specifies interests for members of local authorities, which includes local and community board members. It also requires members of local authorities to disclose gifts and payments they receive. The Act creates an offence for members who fail to meet their responsibilities outlined in the Act.
Maritime Powers Act
The Act provides New Zealand enforcement agencies with clear powers to enforce New Zealand's criminal law, and respond to a range of criminal offending, in international waters where New Zealand has existing extraterritorial jurisdiction. These include:
offences that take place on board a New Zealand-flagged vessel in international waters;
offences that take place on board a foreign-flagged vessel or stateless vessel in international waters for which New Zealand has extraterritorial jurisdiction; and
situations where an alleged offender or evidence of criminal offending is located on a New Zealand, foreign, or stateless vessel in international waters.
The Act aims to bring clarity and consistency to New Zealand's approach to maritime threats in international waters. The powers in the Act are consistent with New Zealand's rights and obligations under international law, particularly the United Nations Convention on the Law of the Sea, consistent with international human rights law.
Medicines Amendment Bill (No 2) Act
This Act amends the Medicines Act 1981 to allow for the lawful administration of fourth doses of COVID 19 vaccines for off-label use, and for future COVID-19 vaccine doses to be administered if supported by scientific evidence. This Act was introduced on 7 June 2022 and received Royal Assent on 22 June 2022.
Pae Ora (Healthy Futures) Act
This Act repeals and replaces the New Zealand Public Health and Disability Act 2000 and provides for new structural and accountability arrangements for New Zealand's publicly funded health system. The purpose of the Act is to provide for public funding and provision of services to protect, promote and improve the health of all New Zealanders, achieve equity in health outcomes for New Zealand population groups (with a particular focus on eliminating health disparities for Māori), and build towards pae ora (healthy futures) for all New Zealanders. The Act recognises the Government's obligations under Te Tiriti o Waitangi and sets out health sector principles that the Ministry of Health, the Minister of Health, and each health entity must be guided by when performing any function under this Act.
In relation to structural change, the Act disestablishes the district health boards (DHBs) and the Health Promotion Agency, and implements the following new structure:
Creation of Health New Zealand (HNZ), a Crown agent that will establish localities to plan and commission primary and community health services, and engage with communities, in accordance with the health sector principles.
Creation Māori Health Authority (MHA), an independent statutory entity that will co-commission and plan services with HNZ, commission Kaupapa Māori services, and monitor the performance of the health system for Māori, to improve hauora Māori.
Formalisation of the pre-existing iwi-Māori partnership boards that will represent local Māori perspectives and work with HNZ and MHA to communicate these perspectives.
Establishment of a new Public Health Agency as a business unit of the Ministry of Health that will provide system leadership for public health and advise the Director-General about public health matters.
Further, the Act provides for the continued operation of Pharmac, the New Zealand Blood and Organ Service, and the Health Quality and Safety Commission, sets out the objectives and functions of these organisations, and requires these organisations to operate in a financially responsible manner.
In relation to accountability arrangements, the Act provides for the introduction of several documents to improve strategic direction, monitoring and accountability within the health sector. These documents include the Government Policy Statement on Health, Health Strategies, New Zealand Health Plan, localities and locality plans, New Zealand Health Charter, and a code of expectations for consumer and whānau engagement in the health sector.
Protected Disclosures (Protection of Whistleblowers) Act
This Act replaces the Protected Disclosures Act 2000. The Act clarifies the definition of serious wrongdoing, enables people to report serious wrongdoing directly to an appropriate authority at any time, strengthens protections for disclosers, and clarifies the internal procedure requirements for public sector organisations and the potential forms of adverse conduct disclosures may face. A discloser under the Act is entitled to protection for a disclosure made in accordance with specific sections under the Act to their organisation or to an appropriate authority. A discloser is entitled to protection for a protected disclosure made to their organisation if it is made (a) in accordance with any internal procedures; or (b) to the head or a deputy head of the organisation. A disclosure of information is a protected disclosure if the discloser (a) believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the discloser's organisation; and (b) discloses information about that in accordance with this Act; and (c) does not disclose it in bad faith.
The Act came into force on 1 July 2022.
Retail Payment System Act
This Act introduces measures aimed at promoting competition and economic efficiency in the retail payment system. The Act:
provides for the regulation of participants in retail payment networks (including via initial designations and an initial pricing standard); and
confers certain functions and powers on the Commerce Commission for that purpose, of which some apply to designated networks and other apply to all retail payment networks;
enables the Commerce Commission to regulate fees and charges by merchants in respect of certain payment services (for example, payment surcharges); and
provides for investigation, monitoring, and enforcement by the Commerce Commission.
The Commerce Commissions functions under this Act include:
to monitor competition and efficiency in the retail payment system:
to conduct inquiries, reviews, and studies into any matter relating to the retail payment system in New Zealand:
to make available reports, summaries, and information about the things referred to in paragraphs (a) and (b):
to co-operate with and assist other law enforcement or regulatory agencies that carry out a role in relation to the retail payment system.
Supply Workers (Pay Equity) Settlements Amendment Act
The Amendment Act amends the Support Workers (Pay Equity) Settlements Act 2017 to give effect to an increase to the minimum wage rates from 1 July 2022 for supports workers covered by the principal Act. This amendment reflects Cabinet's decision in April 2022, to provide additional funding to enable a minimum wage adjustment from 1 July 2022 until 31 December 2023, for the support workers, including extending the minimum hourly wage rates payable by employers to support workers beyond 30 June 2022.
Taxation (Cost of Living Payments) Act
This Act amends the Tax Administration Act 1994 and the Income Tax Act 2007 to add provisions in relation to the Cost-of-Living Payment Scheme (Scheme), which is aimed at providing financial support to eligible low to middle income individuals facing increased cost-of-living pressures because of the recent spike in inflation. The Act does not contain eligibility criteria for payments under the Scheme as these have been separately decided by the Government.
The Act makes the following amendments:
This Act was introduced on Budget Day (19 May 2022) and passed under urgency. It received its royal assent on 24 May 2022.
Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Act
This Act was a response to a recent examination of the Unit Titles Act 2010 which found that on-going scrutiny was required to ensure that the Act is adequate for its purpose, including providing sufficient protection for people buying or already living in a unit title complex. This Act includes amendments to:
improve the information disclosure regime to prospective buyers of units;
strengthen the governance arrangements in relation to the body corporate, the owner entity responsible for the management and operation of a unit title complex;
increase the professionalism and standards of body corporate managers; and
ensure that planning and funding of long-term maintenance projects is adequate and proportionate to the size of the complex concerned.
This Act was enacted on 9 May 2022. Some amendments may come into force by Order in Council, with all changes to take effect no later than two years from the date the Amendment Act became law (9 May 2024).
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