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Watching Brief – July 2015

Home Insights Watching Brief – July 2015

Matter of opinion

It's been a long wait - thoughts on the declaration of inconsistency

In the 25 years since the New Zealand Bill of Rights Act (BORA) was passed, no court ever declared legislation inconsistent with the fundamental rights it mandates. Not only that: courts have been unable to decide whether or not they had jurisdiction to make a declaration of inconsistency in the first place. Courts have found that rights under BORA have been breached in relation to legislative provisions, but no formal declaration was ever made. For this reason you could reasonably complain that our BORA has been stuck in its infancy, particularly when compared to other jurisdictions.

That all changed last Friday with the release of Taylor v Attorney-General, a landmark decision of constitutional significance. The case concerned a provision in the Electoral Act which provides that all prisoners incarcerated as a result of a sentence imposed after 16 December 2010 cannot vote in a General Election. For the first time, Justice Heath formally declared that this provision was inconsistent with fundamental BORA rights and that the infringement could not be “demonstrably justified in a free and democratic society”. It is the tipping point we have been waiting for that should give future courts confidence to consider this remedy as a matter of course.

Justice Heath referred to the responsibility of the Court to the public and emphasised that only a formal order would discharge that responsibility. He stated that a statutory breach of BORA “should be marked by a formal declaration of the High Court, rather than by an observation buried in its reasons for judgment”. 

Of course, the Crown might appeal. It has traditionally argued that there is no jurisdiction to ever make such a declaration. However, this case would be a difficult one to overturn. As Justice Heath noted, “if a declaration were not made in this case, it is difficult to conceive of one in which it would”. 

So what does the declaration really mean? In New Zealand, the Government is neither required nor (currently) constitutionally expected to take some form of action in response to a declaration (unlike jurisdictions such as the UK and Canada). That is, the impinged provision will not necessarily change as a result of the declaration.  

The critical question, then, is how the Government and Parliament respond. Currently, the Attorney-General provides a report on any Bill that might be inconsistent with BORA (referred to as a section 7 report). However, legislation is often passed regardless of a report concluding the Bill is inconsistent (as was the case with the law in question here). A formal declaration should not be viewed in the same way. It provides a strong judicial statement that, unless and until that law is fixed, fundamental rights will continue to be violated and without justifiable reason. The formal declaration unequivocally signals the status quo is unacceptable from a rights perspective. The declaration places pressure on Government and Parliament, not only because of the formality of the declaration, but because of public perception and our wider international reputation.

Accordingly, at the very least, the decision should invoke serious engagement from Government and Parliament. It should also contribute to a culture of justification and development of a dialogue between the legislative and judicial branches of government. It provides an opportunity to develop as a sophisticated rights-based jurisdiction.

In politics

Green Party reshuffles

The Green Party has reshuffled its portfolios following the election of new co-leader James Shaw. The most noticeable change has been in the rise of second-term MP Julie Anne Genter to the finance portfolio, which was held by outgoing co-leader Dr Russel Norman. 

Despite Mr Shaw running on a platform of economic credibility given his background in business consultancy, he now holds the portfolios of Climate Change and Economic Development. Co-leader Metiria Turei leads the Inequality portfolio, in a move that the party says demonstrates its priorities for the term ahead.

The decision to give the weighty finance portfolio to Ms Genter, who sits at number nine on the Green list, may indicate that the party has given up any hope of holding the finance portfolio in any future government. Indeed, this change may well be aimed at soothing the concerns of centrist Labour voters that the Greens would seek the finance portfolio in any coalition government. It may also be a sign that Ms Genter is being groomed as an eventual successor to Ms Turei.

The key portfolio changes are:

  • Metiria Turei: Inequality, Building and Housing (including Social Housing, HNZ), Maori Affairs;
  • James Shaw: Climate Change, Economic Development;
  • Russel Norman: Trade, Justice (electoral), National Intelligence and Security (including NZSIS, GCSB);
  • Kevin Hague: Health (including ACC, Sport & Recreation), Conservation, Rainbow Issues;
  • Eugenie Sage: Environment, Primary Industries, Land Information, Canterbury Earthquake Recovery, Earthquake Commission; and
  • Julie Anne Genter: Finance (including Revenue, SOEs), Transport, Youth.

The Greens media release can be viewed here.

In the news

Attorney-General satisfied with Crown Law conduct in R v Banks

Attorney-General Hon Christopher Finlayson has announced that he is satisfied with the conduct of the Crown Law Office in relation to the Court of Appeal decision of R v Banks.

The Attorney-General, in his capacity as the Minister responsible for the Crown Law office, was prompted to review the case after a media backlash followed the decision. The controversy centred on the involvement of Crown Law in the proceeding as, despite the fact that it was a private prosecution and that the decision to commit Mr John Banks to trial was an independent judicial decision, Crown Law briefed an independent barrister to conduct the prosecution. 

The Attorney-General concluded that he was satisfied that Crown Law's supervision of the litigation was satisfactory and complied with the Prosecution Guidelines 2013.

The full article can be accessed here.


Environment Canterbury Transition Plan announced

From 2016, Environment Canterbury (ECan) will be run by a combination of elected councillors and Government-appointed commissioners under a plan released by the Minister for the Environment and the Associate Minister of Local Government. The plan will see a fully-elected council return in 2019.

The governance model will be a seven-six split between elected councillors and commissioners, to be formed after the next local government elections scheduled for October 2016. The Minister for the Environment acknowledged the need for a return to a democratically-elected council, but stressed the ongoing importance of commissioners.

In 2010, the Government replaced ECan with six commissioners, led by Dame Margaret Bazley, after expressing frustration at ECan's inability to implement freshwater management reform. It was expected that they would serve until 2013, but their tenure was extended because the Minister considered that a return at that stage to a wholly-elected council could jeopardise the work underway.

The content of the plan is intended to be incorporated into a Bill that will be considered by the Local Government and Environment Select Committee. The public will have an opportunity to make oral and written submissions later this year. 

The full media release can be viewed here.


Government accepts Productivity Commission recommendations

The Government has accepted (or in some cases partially accepted) all 44 recommendations from the 2014 Productivity Commission report “Regulatory institutions and practices”. The Government commissioned the Productivity Commission inquiry in July 2013 seeking system-wide recommendations aimed at improving the design and operation of regulatory regimes in New Zealand. 

The Productivity Commission’s report concluded that there was “clear room for improvement” in the performance of the regulatory system.

Key initiatives arising from the Government’s responses include:

  • supporting departments to meet the Government’s expectations for regulatory stewardship;
  • increasing attention given to legislative design and greater use of exposure drafts for significant legislation;
  • building regulatory capability through a cross-government forum (ie intellectual leadership of regulatory practice by chief executives of regulatory agencies);
  • reinforcing departments responsibility for the monitoring and review of regulatory regimes through an expectation that departments report publicly on their regulatory management strategy, the state of their regulatory stock, and plans for improvement;
  • strengthening the expectations and process around performance review of crown entity regulators, and
  • improving regulator cost recovery practices, including providing more information to fee-payers through the use of open-book exercises so fee-payers can have input into agency cost structures.

The Government’s response to each specific recommendation can be found here.


Minister announces launch of Investment Attraction Strategy

The Minister of Economic Development has announced Cabinet approval of The New Zealand Investment Attraction Strategy (IAS), designed to attract international business and promote economic growth across New Zealand.

The IAS forms a key part of the Government’s Business Growth Agenda and will be led by a team of senior officials from across government. It will include representatives from New Zealand Trade and Enterprise, the Ministry of Business, Innovation, and Employment, the Ministry of Foreign Affairs and Trade, the Treasury, and Callaghan Innovation. 

The IAS identifies three key priorities:

  • to attract high-quality foreign direct investment into New Zealand’s competitive areas;
  • to attract international investment in research and development, including encouraging multinational companies to base their research and development activities in New Zealand; and
  • attracting international investors and entrepreneurs to reside in New Zealand to grow its smart capital pool.

Further, the IAS will develop an investor liaison programme and engage with research entities such as the Lincoln Hub, the Christchurch Innovation Project, Food HQ and Technology Valley to assist the research and development needs of targeted companies. In doing so, the IAS aims to attract at least ten new international corporations to undertake research and development activities in New Zealand over the next five years.

The Minister signalled that the Government will undertake targeted consultation with the private sector on the IAS and will promulgate the final strategy in due course. Dates have not yet been made publically available. 

The Minister’s statement is available here. The full New Zealand Investment Attraction Strategy Cabinet Paper is available here.


Ombudsman monitoring Serco investigation

At the request of the Department of Corrections Chief Executive, Ray Smith¸ the Office of the Ombudsman will be monitoring and reviewing the independent investigation into Serco's management of the Mount Eden Corrections Facility.  

The investigation is being conducted by the Chief Inspector of Corrections. An "inspector of corrections", appointed by the Department of Corrections Chief Executive under the Corrections Act 2004, reports directly to the Chief Executive, independent from local prison and community probation management.

The investigation will be rolled out in two phases, amounting to two reports presented to Mr Smith, through the Chief Inspector, on 28 August 2015 and 30 September 2015. Phase Two will examine not only the Mount Eden prison, but prisons across New Zealand. The Terms of Reference for the investigation state that Phase Two will “review the adequacy of controls designed to address prisoner violence and access to cell phones operating in other New Zealand prisons”.


Reserve Bank announces Regulatory Stocktake

The Reserve Bank has announced that it will be conducting a stocktake of the current regulatory environment for banks and Non-bank Deposit Takers (NBDTs). The purpose of the stocktake is to enhance the efficiency, clarity, and consistency of the prudential requirements applying in those sectors (given the major changes to these requirements over the last ten years).

The stocktake will be rolled out in two parts. The first part will be a public consultation on the project, which has already commenced with the release of the Reserve Bank consultation document, Regulatory Stocktake of the Prudential Requirements Applying to Registered Banks. The second part is the simultaneous release of an Industry Update for NBDTs, which sets out how the Reserve Bank proposes to respond to the NBDT-related matters that have been raised as part of the stocktake.

While the stocktake does not intend to alter the fundamental shape of the prudential regime that applies to banks, the consultation document does sets out a number of proposals designed to make the prudential regime operate more efficiently, including possible changes to the frequency and content of the disclosure statements prepared by banks.

Submissions on the consultation document are due by 16 September 2015. A copy of the consultation document can be found here. A copy of the Industry Update for NBDTs can be found here.


Select Committee report on Health and Safety Reform Bill

The Transport and Industrial Relations Committee released its report on the Health and Safety Reform Bill on 24 July 2015. The Bill was referred to the Committee after its first reading on 13 March 2014. The Committee recommends that the Bill be passed with its proposed amendments. The Committee's key amendments are discussed in our latest Health and Safety update here.

A copy of the full Select Committee report can be found here.

Progress of legislation

New Bills

Christian Churches New Zealand Property Trust Board Empowering Bill
Type of Bill: Private
Member in Charge: Hon Nick Smith
This Bill seeks to reform the management structure of The Associated Churches of Christ in New Zealand. The Bill would transfer existing property held by the Associated Churches Property Trust Board to the Christian Churches New Zealand Property Trust Board and remove the former from the register. Further, the Bill would repeal the Associated Churches of Christ Church Property Act 1929.

Education (Charter Schools Curriculum) Amendment Bill
Type of Bill: Members
Member in Charge: Hon Phil Goff
This Bill seeks to amend the Education Act 1989 to expand the duties that govern the curriculums of partnership schools in New Zealand (also referred to as “charter” schools). The purpose of the Bill is to restore confidence and quality in New Zealand’s education system. The Bill would amend sections 158G and 158U of the principal Act so that partnership schools, and their sponsors, are required to deliver a curriculum in accordance with any applicable national education guidelines published under section 60A of the principal Act. At present, under section 158G, partnership schools are required to deliver a curriculum in line with “any foundational curriculum policy statements” published under section 60A(1)(aa) of the principal Act. These statements are only one of various national education guidelines that the responsible Minister may publish under section 60A.

Land Transport (Speed Limits Validation and Other Matters) Bill
Type of Bill: Government
Member in Charge: Hon Simon Bridges
This Bill was introduced and passed under urgency. It has since passed into law and is discussed in the Acts Assented section below.

Ngāruahine Claims Settlement Bill
Type of Bill: Government
Member in Charge: Hon Chris Finlayson         
This Bill seeks to give effect to the deed of settlement between Ngāruahine and the Crown, signed on 9 August 2014, and provides for the final settlement of historical Treaty of Waitangi claims of Ngāruahine. The Bill would provide a range of cultural and commercial redress for the South Taranaki iwi, including provisions for Ngāruahine to contribute three iwi members for appointment on both the policy and planning, and regulatory committees of the Taranaki District Council.

Māori Purposes Bill
Type of Bill: Government
Member in Charge: Hon Te Ururoa Flavell
This omnibus Bill seeks to amend the Maori Purposes Act 1991, which governs the Wi Pere Trust and Maori Trust Board. In doing so, the Bill is said to improve the governance arrangements of the Wi Pere Trust by requiring the incorporation of a trust board and adopting a constitution to replace the current statutory trust, and enabling the Wi Pere Trust to acquire and hold land for investment purposes.

Official Information (Parliamentary Under-Secretaries) Amendment Bill
Type of Bill: Members
Member in Charge: Adrian Rurawhe
This Bill aims to amend the Official Information Act 1982 to ensure that information held by Parliamentary Under-Secretaries is subject to the disclosure requirements of the principal Act. In particular, the Bills seeks to insert a new section 2(1) into the principal Act which provides that, for the purposes of the Act, a Minister of the Crown means a Minister, an Associate Minister, or a Parliamentary Under-Secretary.

Parental Leave and Employment Protection (Six Months’ Paid Leave and Work Contact Hours) Amendment Bill
Type of Bill: Members
Member in Charge: Sue Moroney
This Bill seeks to amend the Parental Leave and Employment Protection Act 1987 to progressively extend the period of paid parental leave available to parents over the next three years. The Bill would amend section 5 of the principal Act by increasing the period of maternity leave from 16 to 22 weeks from 1 April 2016, and from 22 weeks to 26 weeks by 1 April 2018. In doing so, the Bill intends to support World Health Organisation recommendations on parental leave and promote healthy relationships in New Zealand families. 

Social Housing Reform (Transaction Mandate) Bill
Type of Bill: Government
Member in Charge: Hon Paula Bennett
This Bill aims to amend a number of statutes which administer the operation of Housing New Zealand as part of the Government’s ongoing programme of social housing reform. In particular, the Bill amends the Housing Corporation Act 1974 to enable designated Ministers to transfer Housing New Zealand Properties, as well as the properties of its subsidiaries, by entering into contracts and performing other commercial functions of Housing New Zealand as necessary. It is intended that the Bill will be divided into three separate Bills during the Committee of the whole House.

Social Workers Registration (Mandatory Registration) Amendment Bill
Type of Bill: Members
Member in Charge: Carmel Sepuloni
This Bill aims to amend the Social Workers Registration Act 2003 to implement recommendations made to the Minister for Social Development by the Social Workers Registration Board. In particular, the Bill seeks to create a mandatory system of registration by inserting section 5A into the principal Act to require all social workers to be registered and hold current practising certificates. Further, the Bill would make it an offence for unregistered or deregistered social workers to identify themselves as licensed – liable on conviction to imprisonment for a term not exceeding three months or a fine not exceeding $10,000.

Taxation (Transformation: First Phase Simplification and Other Measures) Bill
Type of Bill: Government
Member in Charge: Hon Todd McClay
This omnibus Bill aims to amend a number of statutes to facilitate easier communication with, and improve communication by, the Inland Revenue Department. The Bill seeks to enable the greater use of electronic signatures in communications with Inland Revenue by incorporating elements of the Electronic Transactions Act 2002. Further, the Bill seeks to enable Inland Revenue to provide additional information to KiwiSaver scheme providers, including the names of fund members who have transferred out of that scheme and the name of their new fund provider.


Bills awaiting first reading

Education (Charter Schools Curriculum) Amendment Bill
Financial Assistance for Live Organ Donors Bill
Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill
Land Transport (Safer Alcohol Limits for Driving) Amendment Bill
Legislation Amendment Bill
Local Government Act 2002 (Greater Local Democracy) Amendment Bill
Māori Purposes Bill
Minimum Wage (Contractor Remuneration) Amendment Bill
New Zealand Superannuation and Retirement Income (Pro Rata Entitlement) Amendment Bill
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Ngāruahine Claims Settlement Bill
Official Information (Parliamentary Under-Secretaries) Amendment Bill
Parental Leave and Employment Protection (Six Months’ Paid Leave and Work Contact Hours) Amendment Bill
Public Collections and Solicitations (Disclosure of Payment) Bill
Remuneration Authority Amendment Bill
Social Housing Reform (Transaction Mandate) Bill
Social Workers Registration (Mandatory Registration) Amendment Bill
SuperGold Health Check Bill
Taxation (Transformation: First Phase Simplification and Other Measures) Bill


Bills defeated

Fighting Foreign Corporate Control Bill
Member in charge: Fletcher Tabuteau
60 in favour: Labour 32; Green Party 14; New Zealand First 12; Māori Party 2.
61 against: National 59; ACT New Zealand 1; United Future 1.

New Zealand International Convention Centre Act 2013 Repeal Bill
Member in charge: Tracey Martin
60 in favour: Labour 32; Green Party 14; New Zealand First 12; Māori Party 2.
61 against: National 59; ACT New Zealand 1; United Future 1.

Overseas Investment (Owning our Own Rural Land) Amendment Bill
Member in charge: Hon Phil Goff
60 in favour: Labour 32; Green Party 14; New Zealand First 12; Māori Party 2.
61 against: National 59; ACT New Zealand 1; United Future 1.


Bills before Select Committee

Submissions open

Bill

Select Committee

Closing date for Submissions

Electronic Monitoring of Offenders Legislation Bill

Law and Order

30 July

Environmental Protection Authority (Protection of Environment) Amendment Bill

Local Government and Environment

Not yet called

Evidence Amendment Bill

Justice and Electoral

13 August

Passports Amendment Bill (No 2)

Government Administration

30 October

Social Security (Extension of Young Persons Services and Remedial Matters) Amendment Bill

Social Security

Not yet called

Subordinate Legislation Confirmation Bill

Regulations Review

Not yet called


Submissions closed

Bill

Select Committee

Report Due (2015)

Accident Compensation (Financial Responsibility and Transparency) Amendment Bill

Transport and Industrial Relations

3 November

Building (Earthquake-prone Buildings) Amendment Bill

Local Government and Environment

3 September

Coroners Amendment Bill

Justice and Electoral

19 August

Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill

Law and Order

10 September

Local Government (Auckland Council) Amendment Bill (No 3)

Local Government and Environment

24 December

Māori Language (Te Reo Māori) Bill

Māori Affairs

25 September

New Zealand Business Number Bill

Commerce

5 November

Passports Amendment Bill (No 2)

Government Administration

30 October

Radiation Safety Bill

Health

10 September

Support for Children in Hardship Bill

Social Services

3 November

Tariff (Free Trade Agreement between New Zealand and the Republic of Korea) Amendment Bill

Foreign Affairs, Defence and Trade

3 November

Taxation (Annual Rates for 2015-16, Research and Development, and Remedial Matters) Bill

Finance and Expenditure

11 September

Taxation (Land Information and Offshore Persons Information) Bill

Finance and Expenditure

17 August

Bills awaiting second reading

Bills that have recently been reported back to the House from a Select Committee are in bold and the Select Committee reports on these Bills are linked.

Defence Amendment Bill
Health and Safety Reform Bill (as reported by the Transport and Industrial Relations Committee)
Housing Corporation Amendment Bill
Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill
Policing (Cost Recovery) Amendment Bill (as reported by the Law and Order Committee)
Public Health Bill
Register of Pecuniary Interests of Judges Bill
Regulatory Standards Bill
Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill
Spending Cap (People's Veto) Bill
Taxation (Income-sharing Tax Credit) Bill
Weathertight Homes Resolution Services Amendment Bill (as reported by the Local Government and Environment Committee)


Bills awaiting third reading

Appropriation (2015/16 Estimates) Bill
Commerce (Cartels and Other Matters) Amendment Bill
Construction Contracts Amendment Bill
Environmental Reporting Bill
Gambling Amendment Bill (No 3)
Harmful Digital Communications Bill
Hawke's Bay Regional Planning Committee Bill
Health (Protection) Amendment Bill
Human Rights Amendment Bill
Insolvency Practitioners Bill
Judicature Modernisation Bill
Natural Health and Supplementary Products Bill (formerly the Natural Health Products Bill)
New Zealand Flag Referendums Bill
New Zealand Superannuation and Retirement Income Amendment Bill
Organised Crime and Anti-corruption Amendment Bill
Parental Leave and Employment Protection (Six Months Paid Leave) Amendment Bill
Radio New Zealand Amendment Bill
Reserves and Other Lands Disposal Bill
Standards and Accreditation Bill
Taxation (New Zealand Superannuation and Retirement Income) bill
Te Hiku Claims Settlement Bill
Te Kawerau ā Maki Claims Settlement Bill
Waitangi National Trust Board Amendment Bill


Acts assented

Land Transport (Speed Limits Validation and Other Matters) Act 2015
This Act validates a number of speed limit bylaws made by road controlling authorities around New Zealand using powers not available to them, or not in complete compliance with their bylaw making powers. The Act validates speed limits set since 5 April 2004 regardless of whether they were set under potentially invalid bylaws and validates enforcement action in relation to those bylaws since that date. The need for the Act arose following the identification of administrative errors which resulted in a number of councils and regional authorities not updating their speed limit bylaws, following changes to local government legislation in 2002 and 2006, and transport legislation in 2004, which affected bylaw renewal timeframes.

Harmful Digital Communications Act 2015
This Act addresses a number of issues raised in the New Zealand Law Commission’s 2012 Ministerial Briefing paper, Harmful Digital Communications, which identified deficiencies in the range of sanctions and remedies available to address such communications. Section 22 of the Act makes it an offence if a digital communication is posted on the internet with the intention of causing harm to a victim, the communication does in fact cause that victim harm, and if the harm caused would have caused harm to the ordinary reasonable person in the victim’s position. The Act provides that a person found guilty of such an offence is liable to a term of imprisonment not exceeding two years or a fine of up to $50,000. Sections 23 and 24 of the Act provide a mechanism for online content hosts to avoid liability for harmful content hosted by their platform if certain notice and procedural processes are followed. 


Legislative instruments

Accident Compensation (Motor Vehicle Account Levies) Amendment Regulations 2015
Anti-Money Laundering and Countering Financing of Terrorism (Class Exemptions) Amendment Notice (No 2) 2015
Anti-Money Laundering and Countering Financing of Terrorism (Class Exemptions) Amendment Notice 2015
Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Amendment Regulations 2015
Criminal Procedure (Transfer of Information) Amendment Regulations 2015Housing Accords and Special Housing Areas (Auckland – New June 2015 Area) Order 2015 Housing Accords and Special Housing Areas (Wellington – New June 2015 Areas) Order 2015
Domestic Violence Amendment Rules 2015
Electricity Industry (Enforcement) Amendment Regulations 2015
Family Courts Amendment Rules 2015
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Area/Rohe Moana of Wairewa Rūnanga) Notice 2015
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Area/Rohe Moana of Te Hapū o Ngāti Wheke) Notice 2015
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Mātaitai Reserve at Rapaki Bay) Notice 2015
Housing Accords and Special Housing Areas (Tauranga – New June 2015 Areas) Order 2015
Land Transport (Certificates of Compliance for Evidential Breath-Testing Device (Dräger 7510NZ)) Amendment Notice 2015
Land Transport Management (Road Tolling Scheme for Northern Gateway) Amendment Order 2015
Land Transport Management (Road Tolling Scheme for Takitimu Drive (Route K)) Order 2015
Land Transport Management Amendment Act 2013 Commencement Order 2015
Local Government Elected Members (2015/16) (Certain Local Authorities) Determination 2015
Privacy (Information Sharing Agreement for Improving Public Services for Vulnerable Children) Order 2015
Takeovers Code (Small Code Companies) Exemption Notice 2015
Tax Administration (Emergency Event – Manawatu–Wanganui, Taranaki, and West Coast Floods) Order 2015
United Nations (Syrian Cultural Property) Regulations 2015
United Nations Sanctions (Yemen) Amendment Regulations 2015
Wildlife (Chatham Islands) Notice 2015

In the week ahead

What’s coming up in the House

The House resumed on Tuesday 21 July after a two week recess. The Government will look to continue the committee stage of the Appropriation (2015/16 Estimates) Bill and make progress on the New Zealand Flag Referendums Bill.

The House will enter a one week recess from 30 July.

In committee

Recent Committee meetings

Select Committees met over the last two weeks.

The Education and Science Committee was briefed on the teaching of Te Reo Māori in the compulsory education sector.

The Finance and Expenditure Committee considered the Taxation (Land Information and Offshore Persons Information) Bill and considered a Report from the Controller and Auditor-General: Being accountable to the public: Timeliness of reporting by public entities.

The Foreign Affairs, Defence and Trade Committee considered the Tariff (Free Trade Agreement Between New Zealand and the Republic of Korea) Amendment Bill.

The Government Administration Committee considered a Report from the Controller and Auditor-General: Effectiveness of governance in the arts culture and heritage sector.

The Māori Affairs Committee was briefed on the tobacco industry in New Zealand and the consequences of tobacco use for Māori, and on the Independent Review of Māori Commercial Fisheries Structure under the Māori Fisheries Act 2004.

The Local Government and Environment Committee considered two Reports from the Parliamentary Commissioner for the Environment: Managing Water Quality: Examining the 2014 National Policy Statement; and Water Quality in New Zealand: Land Use and Nutrient Pollution, Update Report.

The Social Services Committee considered a Report from the Controller and Auditor-General: Whanau Ora; The first four years.

The Transport and Industrial Relations Committee considered the Accident Compensation (Financial Responsibility and Transparency) Amendment Bill.

Speeches of note

Minister of Justice addresses Asia/Pacific Group Annual Meeting 2015 on Money Laundering

Hon Amy Adams, Minister of Justice, gave the keynote address at the Asia/Pacific Group (AGP) Annual Meeting 2015 on Money Laundering in Auckland on 13 July 2015.

The address outlined what New Zealand was doing to tackle the serious issues associated with money laundering.

The address focused on seven key areas: 

  • The impacts of money laundering: the International Monetary Fund and the United Nations Office on Drugs and Crime estimate that the amount of money globally laundered every year is between $590 billion – $1.6 trillion. As such, money laundering is a significant facilitator of economic crime, undermining the integrity and stability of countries’ financial institutions and systems, discouraging foreign investment, and distorting international capital flows.
  • The case for a robust regime: the increasing use of modern technologies and communications is a significant hurdle in relation to regulating money laundering activities. Money launderers and terrorist financiers exploit both the complexity inherent in the global financial system as well as differences between national laws and systems regarding Anti-Money Laundering and Countering Financing of Terrorism (AML/CFT).
  • Ensuring New Zealand’s regime is robust: the overhaul of the AML/CFT regime in 2013 increased disclosure and reporting obligations on individual institutions and firms to address the risks associated with money laundering and terrorist financing – including the implementation of AML compliance regimes to mitigate and address risk. The number of reports of suspicious transactions to the Financial Intelligence Unit for the 2013/14 period exceeded 12,000 reports – up threefold from 3,500 reports for the 2012/13 period.
  • Organised Crime and Anti-corruption Bill: the Bill intends to makes two important amendments to the money laundering offence under the Crimes Act 1961, namely:
    • removing the requirement that proceeds of the money-laundering be generated from offending punishable by five years or more imprisonment; and
    • revising the requirements for prosecution to make it easier to prosecute money launders. The Bill intends to clarify that the prosecution is not required to prove that a defendant has specific intent to conceal the proceeds of crime (ie it is sufficient to show that the defendant intended the act that resulted in concealment).
  • Phase Two roll-out of the AML reforms: The Ministry of Justice has begun preliminary policy work considering a second tranche of AML/CFT reform to extend coverage to additional “Designated Non-Financial Professions and Businesses”, including lawyers, accountants, conveyancing practitioners, real estate agents and businesses that deal in high-value goods.
  • Countering the financing of terrorism: New Zealand is overseeing the work of the UN Security Council Committee in relation to sanctions on Al-Qaeda.
  • International co-operation: the Minister concluded that AGP members shared a commitment to working together to “stamp out” money laundering in the Asia-Pacific Region.

A transcript of the address can be found here.

In trade

New Zealand ratifies WTO Government Procurement Agreement

Two years on from the commencement of negotiations, New Zealand has finalised its accession to the World Trade Organisation’s (WTO) Government Procurement Agreement (GPA), effective 12 August 2015. The GPA creates an equal playing field for New Zealand companies, allowing them to compete at the same level as their international counterparts by gaining guaranteed access to bid for government contracts in 43 WTO member countries, including the US, Canada, Japan, and the 28 countries of the European Union.

The estimated value of the government procurement markets under the GPA is USD $1.7 trillion, with this figure predicted to grow.

The aim of the GPA is to open-up government procurement markets to international competition; ensure transparency; and provide legal guarantees of non-discrimination with regard to the products, services or suppliers of any of its parties.

While business opportunities for New Zealand exporters will increase, New Zealand’s accession to the GPA is unlikely to have a major impact on New Zealand government agencies – the GPA’s fundamental principles are already reflected in our own Government Rules of Sourcing.

A copy of the GPA can be found here.


WTO agreement to liberalise tariffs on IT products

On 24 July 2015, 54 WTO member states reached a trade deal to lower the tariffs of over 200 IT-related products. A tentative accord reached on 18 July was confirmed as the basis for implementation work to begin. Technical work on the deal is expected to be wrapped up by December 2015.

The deal, which builds on the WTO’s 1996 Ministerial Declaration on Trade in Information Technology Products, provides that the majority of tariffs will be eliminated on the listed IT products within three years, with reductions beginning from 2016. WTO Director-General Roberto Azevêdo pitched annual trade in the products at over $1.3 trillion per year, accounting for approximately 7 per cent of today’s total global trade.

Trade Minister Hon Tim Groser has laid out the path for the deal moving forward, which will require Cabinet approval and Select Committee examination. He expects the tariff liberalisation to grant better access for New Zealand companies to a number of key markets, including some not covered by existing free trade agreements.

More information on the deal can be found here.


Tariff Concessions

The following applications for tariff concessions have been made in the past two weeks:

Bill

Select Committee

Report Due (2015)

Accident Compensation (Financial Responsibility and Transparency) Amendment Bill

Transport and Industrial Relations

3 November

Building (Earthquake-prone Buildings) Amendment Bill

Local Government and Environment

3 September

Coroners Amendment Bill

Justice and Electoral

19 August

Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill

Law and Order

10 September

Local Government (Auckland Council) Amendment Bill (No 3)

Local Government and Environment

24 December

Māori Language (Te Reo Māori) Bill

Māori Affairs

25 September

New Zealand Business Number Bill

Commerce

5 November

Passports Amendment Bill (No 2)

Government Administration

30 October

Radiation Safety Bill

Health

10 September

Support for Children in Hardship Bill

Social Services

3 November

Tariff (Free Trade Agreement between New Zealand and the Republic of Korea) Amendment Bill

Foreign Affairs, Defence and Trade

3 November

Taxation (Annual Rates for 2015-16, Research and Development, and Remedial Matters) Bill

Finance and Expenditure

11 September

Taxation (Land Information and Offshore Persons Information) Bill

Finance and Expenditure

17 August

In consultation

New

Who

What

By when (2015)

Commerce Commission

Further draft pricing review determination for Chorus’ unbundled copper local loop service

13 August

Department of Conservation

Intention to grant 30 year concession to Nelson Petroleum Distributors Limited to construct a commercial fuel supply at the Kaiteriteri Recreation Reserve

9 September

Intention to grant 30 year concession to Southern Ocean Salmon Limited for a fish farm in Takaka

16 September

Intention to grant a 30 year concession to South Port New Zealand Limited for a radio transmitter at Mōtupohue Scenic Reserve, Bluff. 

18 September

Environmental Protection Authority

Application for release of DuPont Zorvec Enicade Fungicide to control downy mildew in onions

3 September

Electricity Authority

Code Review Programme 2015

14 August

Bid and Offer provisions of the Electricity Industry Participation Code 2010: Shortened gate closure and revised bid and offer revision provisions

19 August

Financial Markets Authority

Draft guidance on risk indicators and descriptions of managed funds

15 August

Food Standards Australia and New Zealand

Application to permit the use of a new microbial source for Asparaginase sourced from a genetically modified strain of bacaillus subtilis as a processing aid

31 July

Application to include rebaudisoside M in the list of permutated steviol glycoside products used as intense sweeteners

10 August

Proposal to address an inconsistency in the conditions for vitamin and mineral claims betweens standards 1.2.7 and 1.3.2.

10 August

Application to seek approval for food derived from a genetically modified inspect protected soybean line MON87511

26 August

Inland Revenue Department

Proposal to set general depreciation rate for rail passenger service electric multiple units under “Transportation” asset category in the Commissioners table of depreciation rules

31 July

 

Proposal to set general depreciation rate for carports under the “Buildings and Structures” asset category in the Commissioner’s table of depreciation rules

31 July

Proposal to set provisional depreciation rates for geothermal and thermal powerhouses by adding a new asset class to the “Power Generation and Electrical Reticulation” industrial category

17 August

Proposal top set general depreciation rate for a number of items of specialised equipment used by the oil and gas industry

19 August

Fringe benefit tax – exclusion for car parks provided on an employer’s premises

2 September

Draft statement of Commissioner’s practice for:

  • granting remission on penalties and use-of-money interest;
  • considering applications for financial relief under section 177 of Tax Administration Act 1994;
  • granting relief when overdue child support payment obligation is not possible; and
  • providing relief from student loan repayments under the Student Loan Scheme Act 2011

25 September

Ministry for Primary Industries

Proposed National Environmental Standard for Plantation Forestry and consequent amendments to the management of forestry activities under the Resource Management Act 1991

11 August

Proposed improvements to the Permanent Forest Sink Initiative

14 August

Proposal to amend the New Zealand Maximum Residue Limits of Agricultural Compounds

26 August

Draft import health standard for importing natural sausage casings

14 September

Ministry of Business, Innovation and Employment

Petroleum or engine fuel monitoring levy as a method for meeting New Zealand’s international treaty obligations under the Agreement on an International Energy Program

25 August

Ministry of Justice

Independent review of New Zealand intelligence and security framework and legislation governing the Government Communications Security Bureau and Security Intelligence Service

14 August

Pharmac

Proposal to list icatibant as part of provisional agreement between Shire Australia Pty Limited and PHARMAC

4 August

Development of pharmaceutical labelling preferences

4 August

Proposal to fund preservative free Minims prednisolone sodium phosphate 0.5 per cent eye drops

6 August

Proposal to fund TNF inhibitors (Humira and Enbrel) and gapapentin (Neurontin)

11 August

Reserve Bank

Regulatory stock take of prudential requirements applying to registered banks and licensed Non-Bank Deposit Takers

16 September

Standards New Zealand
- Joint standards

Interlibrary loan application service definition

12 August

Medical Electrical Equipment
Part 1: general requirements for basic safety and essential performance
Part 2: requirements for the basic safety and essential performance of electron accelerators, and essential performance o haemodialysis, haemodiafiltration and haemofiltration equipment

13 August

Test methods of gas Appliances:

  • Part 1: gas fired water heaters, gas space heating appliances, domestic outdoor gas barbecues

13 August

Generating sets for the supply of electricity at voltages normally exceeding 50 V a.c. or 120 V d.c

27 August

Information and documentation – Interlibrary transactions

1 September

Refrigerating systems and heat pumps – Safety and environmental requirements:

  • Part 1: Definitions, classification and selection criteria
  • Part 2: Design, construction, testing, marking and documentation
  • Part 3: Installation site
  • Part 4: Operation, maintenance, repair and recovery

1 September

Designation and safety classification of refrigerants

1 September

Lamp controlgear Part 2.3: particular requirements for a.c. and/or d.c supplied electronic controlgear for fluorescent lamps

2 September

Specification for preservative treatment

  • Part 2: Reconstituted wood based products
  • Part 3: plywood
  • Part 4: laminated veneer lumber
  • Part 5: glued laminated timber products

4 September

Changes to AS/NZS 7000 – Overhead line design to provide maintenance service providers. Design consultants, construction contractors, structure designers and pole  manufacturers with industry standard to replace all previous versions

8 September

Electrical Installations – Selection of cables

  • Part 1 Cables for alternating voltages up to an including 0.56/1kV in typical Australian and New Zealand conditions

8 September

Revision of AS 1753:1990 and NZS 5432: 1990 – Webbing for restraining devices for occupants of motor vehicles

16 September

Current

Who

What

By when (2015)

Commerce Commission

Further draft pricing review determination for Chorus’ unbundled copper local loop service

13 August

Department of Conservation

Intention to grant 30 year concession to Nelson Petroleum Distributors Limited to construct a commercial fuel supply at the Kaiteriteri Recreation Reserve

9 September

Intention to grant 30 year concession to Southern Ocean Salmon Limited for a fish farm in Takaka

16 September

Intention to grant a 30 year concession to South Port New Zealand Limited for a radio transmitter at Mōtupohue Scenic Reserve, Bluff. 

18 September

Environmental Protection Authority

Application for release of DuPont Zorvec Enicade Fungicide to control downy mildew in onions

3 September

Electricity Authority

Code Review Programme 2015

14 August

Bid and Offer provisions of the Electricity Industry Participation Code 2010: Shortened gate closure and revised bid and offer revision provisions

19 August

Financial Markets Authority

Draft guidance on risk indicators and descriptions of managed funds

15 August

Food Standards Australia and New Zealand

Application to permit the use of a new microbial source for Asparaginase sourced from a genetically modified strain of bacaillus subtilis as a processing aid

31 July

Application to include rebaudisoside M in the list of permutated steviol glycoside products used as intense sweeteners

10 August

Proposal to address an inconsistency in the conditions for vitamin and mineral claims betweens standards 1.2.7 and 1.3.2.

10 August

Application to seek approval for food derived from a genetically modified inspect protected soybean line MON87511

26 August

Inland Revenue Department

Proposal to set general depreciation rate for rail passenger service electric multiple units under “Transportation” asset category in the Commissioners table of depreciation rules

31 July

 

Proposal to set general depreciation rate for carports under the “Buildings and Structures” asset category in the Commissioner’s table of depreciation rules

31 July

Proposal to set provisional depreciation rates for geothermal and thermal powerhouses by adding a new asset class to the “Power Generation and Electrical Reticulation” industrial category

17 August

Proposal top set general depreciation rate for a number of items of specialised equipment used by the oil and gas industry

19 August

Fringe benefit tax – exclusion for car parks provided on an employer’s premises

2 September

Draft statement of Commissioner’s practice for:

  • granting remission on penalties and use-of-money interest;
  • considering applications for financial relief under section 177 of Tax Administration Act 1994;
  • granting relief when overdue child support payment obligation is not possible; and
  • providing relief from student loan repayments under the Student Loan Scheme Act 2011

25 September

Ministry for Primary Industries

Proposed National Environmental Standard for Plantation Forestry and consequent amendments to the management of forestry activities under the Resource Management Act 1991

11 August

Proposed improvements to the Permanent Forest Sink Initiative

14 August

Proposal to amend the New Zealand Maximum Residue Limits of Agricultural Compounds

26 August

Draft import health standard for importing natural sausage casings

14 September

Ministry of Business, Innovation and Employment

Petroleum or engine fuel monitoring levy as a method for meeting New Zealand’s international treaty obligations under the Agreement on an International Energy Program

25 August

Ministry of Justice

Independent review of New Zealand intelligence and security framework and legislation governing the Government Communications Security Bureau and Security Intelligence Service

14 August

Pharmac

Proposal to list icatibant as part of provisional agreement between Shire Australia Pty Limited and PHARMAC

4 August

Development of pharmaceutical labelling preferences

4 August

Proposal to fund preservative free Minims prednisolone sodium phosphate 0.5 per cent eye drops

6 August

Proposal to fund TNF inhibitors (Humira and Enbrel) and gapapentin (Neurontin)

11 August

Reserve Bank

Regulatory stock take of prudential requirements applying to registered banks  and licensed Non-Bank Deposit Takers

16 September

Standards New Zealand
– Joint standards

Interlibrary loan application service definition

12 August

Medical Electrical Equipment
Part 1: general requirements for basic safety and essential performance
Part 2: requirements for the basic safety and essential performance of electron accelerators, and essential performance o haemodialysis, haemodiafiltration and haemofiltration equipment

13 August

Test methods of gas Appliances:

  • Part 1: gas fired water heaters, gas space heating appliances, domestic outdoor gas barbecues

13 August

Generating sets for the supply of electricity at voltages normally exceeding 50 V a.c. or 120 V d.c

27 August

Information and documentation – Interlibrary transactions

1 September

Refrigerating systems and heat pumps – Safety and environmental requirements:

  • Part 1: Definitions, classification and selection criteria
  • Part 2: Design, construction, testing, marking and documentation
  • Part 3: Installation site
  • Part 4: Operation, maintenance, repair and recovery

1 September

Designation and safety classification of refrigerants

1 September

Lamp controlgear Part 2.3: particular requirements for a.c. and/or d.c supplied electronic controlgear for fluorescent lamps

2 September

Specification for preservative treatment

  • Part 2: Reconstituted wood based products
  • Part 3: plywood
  • Part 4: laminated veneer lumber
  • Part 5: glued laminated timber products

4 September

Changes to AS/NZS 7000 – Overhead line design to provide maintenance service providers. Design consultants, construction contractors, structure designers and pole  manufacturers with industry standard to replace all previous versions

8 September

Electrical Installations – Selection of cables

  • Part 1 Cables for alternating voltages up to an including 0.56/1kV in typical Australian and New Zealand conditions

8 September

Revision of AS 1753:1990 and NZS 5432: 1990 – Webbing for restraining devices for occupants of motor vehicles

16 September


This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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