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Watching Brief – July 2016

Home Insights Watching Brief – July 2016

Matter of opinion

Making a silk purse...

Of all our regulatory regimes, the overseas investment framework is arguably the most vulnerable to the whims of political positioning and media focus (which drives the other is a matter of debate). However, drill down beneath the surface of the one or two cases that make the headlines, and there are a raft of low risk applications that get caught up in the wake.

The negative impacts on our ability to maintain the level of overseas investment that New Zealand needs to prosper is the story no politician has wanted to own, so it is heartening that the Overseas Investment Office (OIO) and policy makers at The Treasury, are now grappling the bullet and working with stakeholders to review its operations to ensure the regime works better. The Treasury is also considering exemptions that will enable the regime to operate more efficiently and free up OIO resources so they can be targeted where most required.

This emphasis of the current review and reforms is not about softening the regime, but avoiding unintended outcomes that ultimately disadvantage New Zealanders. The review and objectives were helpfully explained and discussed at OIO workshops undertaken in Christchurch, Wellington and Auckland at the end of last month.

The problem has been that, while the OIO regime includes numerous factors to assess benefit to New Zealand against a counterfactual (usually an alternative New Zealand purchaser), it was never designed to be a tick-box or prescriptive regime process. Rather the framework was intended to enable overall judgement to be exercised once the various factors were considered – and as set out by the Court in the Crafar farm decision – based on qualitative not quantitative evidence. Operating correctly, this framework should have provided the flexibility required to consider applications on a case by case basis, best ensuring a balance between attracting investment and protecting our sensitive assets.

However, that very flexibility within the design of the regime has also become its greatest weakness. It has meant that the regime was vulnerable to the political noise it inevitably attracted. To be fair, going back a number of years, the OIO was arguably too much on the ‘rubber stamping’ end of the spectrum, but over the last eight years, the approach has moved to the other extreme. The OIO increasingly felt it had no option but to adopt risk adverse approaches, applying the same strict requirements and weighting, perhaps necessary for the more high risk investments, to the low risk quality investments and investors that New Zealand needs. The consequences should not be underestimated. It took an OIO consultation on an increase in fees for officials and Ministers to fully realise how unnecessary frustrations and delays were seriously damaging our reputation with the very overseas investors we can’t afford to drive away.

The Treasury is intended to consult on draft regulations for the proposed exemption in August/September and will also start considering what further exemptions might be appropriate. The Treasury is also reviewing the Ministerial Directive Letter. In the meantime, Land Information New Zealand has engaged a new OIO deputy chief executive role (albeit on a short-term basis) to help oversee improvements to its operations. The OIO will also be focusing on how investors can assist to enable the OIO to address applications in a more timely fashion.

These efforts reflect best regulatory practice, where regimes should be regularly reviewed on a business as usual basis to ensure they achieve the intended policy objectives. Poorly implemented regulatory arrangements can impose significant costs, risking the country’s economic performance and well-being. However, the best intentions will also require ongoing consistent and level headed political support from the responsible Ministers, including when the going next gets tough.

Cabinet and official papers outlining the proposed reforms can be found here and here.


In politics

Quis custodiet ipsos custodes

The constitutional role of the Ombudsman has been highlighted by the recent release of the Ombudsman’s report into the State Services Commission (SSC) conduct of a 2013 inquiry (Report). The SSC inquiry was initiated to investigate leaks at the Ministry of Foreign Affairs and Trade but went considerably broader, making findings against two senior diplomats unconnected with the leaks. 

The Report identified major failings in the inquiry, including that the inquiry into and criticisms of Mr Derek Leask were unreasonable, unfair and unsupported by evidence, and made a number of recommendations reflecting the seriousness of these findings.

While Mr Iain Rennie and the Hon Paula Bennett (the Minister responsible for the SSC) have since sought to minimise the significance of the Report, they have stopped short of refusing to implement its recommendations. In this context, it is worth reflecting on the role of the Ombudsman, the status of the recommendations, and the implications if the recommendations in the Report are not implemented.

In the absence of a written constitution, the Ombudsman, as an Officer of Parliament, operates as a critical check and balance, providing individuals with protection against the excesses of the State. The potential for an Ombudsman inquiry, in itself, operates as discipline on public sector agencies, incentivising good practice and behaviour. 

Technically, the Ombudsman’s recommendations are recommendatory only and accordingly, do not have to be implemented by the relevant agency. However, because of the Ombudsman’s statutory framework, and constitutional conventions, ignoring the recommendations would be a surprising and, arguably, unwise step for the SSC to take.

Ombudsman’s findings and recommendations have constitutionally and historically been treated with significant respect and weight. Indeed, the Southern Institute of Technology’s refusal to accept the recommendations of the Ombudsman in 2004 is the first and, apparently only time the Ombudsman’s recommendations have been outright ignored.

Reflecting the gravity of the Ombudsman’s recommendations, there is a mechanism in the Ombudsman Act 1975 for the Ombudsman to take further action if its recommendations have been ignored. Under section 23(4) of the Ombudsman Act 1975, if recommendations are not actioned, the Ombudsman can make a report to the House of Representatives. 

This is what happened when the Southern Institution of Technology ignored the Ombudsman’s recommendations, resulting in a debate in Parliament. Members from both sides of the House reiterated the importance of implementing the Ombudsman’s recommendations.

A failure by the SSC to comply with recommendations would be viewed with even greater concern. As the Report notes, the SSC has an important role in ensuring the integrity and trustworthiness of the public sector. It is also the agency that is tasked with building confidence in the public sector: the reason it fell to the SSC to conduct the inquiry in the first place.

Given this, failure by the SSC to implement the recommendations in the Report – without providing compelling reasoning (a different view is not sufficient) – would represent a serious and concerning departure from constitutional convention. The difficulty for the SSC is that Ron Paterson’s findings in the Report are clear, objective and well-reasoned, and therefore, difficult to credibly and reasonably refute.

While some commentators might suggest otherwise, it is more likely than not that the recommendations will be fully implemented by the SSC. Iain Rennie was replaced as SSC Commissioner this week. A failure to implement the Ombudsman’s recommendations would be a most unfortunate start for the new Commissioner’s tenure. It is even more important that the guardians of our public sector are seen to uphold the very principles that underpin the integrity of that system.


In the news

Deputy Chief Parliamentary Counsel appointed

On 17 June 2016 Chief Parliamentary Counsel Fiona Leonard announced the appointment of Cassie Nicholson to the position of Deputy Chief Parliamentary Counsel (Director Drafting Legislation).

In this role, Ms Nicholson is responsible for the Parliamentary Counsel Office’s (PCO) four drafting teams, each of which drafts legislation for a specific group of government departments and public sector organisations. The four teams are Commercial, Infrastructure, Justice and Social, and Resources and Treaty.

More broadly, the PCO is responsible for the drafting and publication of all government bills, acts and legislative instruments, except Inland Revenue bills, which are drafted by the Inland Revenue. The PCO is a separate statutory office constituted under section 58 of the Legislation Act 2012 and sits under the control of the Attorney-General. Which is not part of the core public service.

Ms Nicholson has worked with the PCO for 17 years. With a background in commercial law, she joined the public sector following postgraduate study at the London School of Economics, specialising in law and regulation. During a two-year secondment to the Ministry of Business, Innovation and Employment, Ms Nicholson led complex policy reform. Since 2015, she has been the acting Drafting Team Manager of the Resources and Treaty team. Her appointment as Deputy Chief Parliamentary Counsel has been effective since 7 June 2016.

The PCO’s press release on Ms Nicholson’s appointment can be viewed here.


Draft Decision on Input Methodologies released

The Commerce Commission (Commission) has released its draft decision on Input Methodologies (IMs): the rules, requirements and processes applied to sectors regulated under part 4 of the Commerce Act 1986 (Act). The Act requires the Commission to set and apply IMs to regulated lines, gas pipelines, and selected airport services. It must also review the IMs every seven years (the present IMs having been set in 2010).

The Draft Decision does not propose radical change, rather, it outlines a small number of targeted adjustments designed to better achieve the over-arching purpose of Part 4: to protect the long term interests of consumers. The proposed changes have been made with a view to enhancing regulatory certainty and reducing compliance costs in regulated sectors.

Key points from the draft decision include:

  • Having received a number of submissions about the effects of emerging technology in the electricity sector, the Commission has decided that the existing IM regime is sufficiently flexible to cope with technological change. While some submitters were concerned that the availability of new technology would cause demand for old-fashioned electricity lines to fall away (meaning electricity distributors would not be able to recover their historical investments), the Commission considers this is unlikely to be a significant concern in the next five to 10 years.
  • The cost of capital methodology remains largely unchanged apart from a slight reduction to the allowable rate of return for gas pipeline businesses to bring them into line with electricity businesses.
  • The Commission plans to switch from a price cap to a revenue cap for electricity distributors. The Commission notes that the Electricity Authority has a different view on the merits of a revenue cap, and it seeks feedback on that view.
  • The draft decision proposes moving to a ‘pure’ revenue cap for gas transmission, and includes adjustments relating to price-quality paths.

The IM review process is designed to allow the Commission to assess the effectiveness of the IM regime and to update it to reflect technological, structural and other changes in the sectors that it regulates. The effects of the new IMs will not be felt by consumers until the next ‘price-setting event’ in each sector: when businesses will apply the IMs and set prices accordingly. The next price-setting events are in 2017 for the gas sector, and for Christchurch and Auckland Airports; 2019 for Wellington Airport, and 2020 for electricity distributors and Transpower.

Submissions can be made on the IM Draft Decision until 28 July, while submissions on the amended determinations close on the 11 August.

The Commission’s announcement and draft decisions are available here.


FMA releases auditor regulation and oversight plan for 2016

On 13 June the Financial Markets Authority (FMA) released its auditor regulation and oversight plan for 2016 (Plan). The Plan sets out a new style of audit report, which has been issued by the External Reporting Board, and is intended to provide better information to investors.

The new auditor’s report imposes new standards for listed entities. Specifically, the report:

  • requires auditors to communicate key audit matters, including the name of the engagement partner, in the report;
  • requires the auditor to report on significant matters in the audit of the financial statements by explaining why the matter was significant and how their audit addressed the matter; and
  • gives auditors an opportunity to explain their work and to provide additional information. This relates to the FMA's expectation that reporting should reflect the uniqueness of each business.

The Plan is aimed at auditors, preparers of financial statements, and the directors of entities which are required to report under the Financial Markets Conduct Act 2013. The Plan’s overarching aims are to improve audit quality and provide for better recognition of New Zealand auditors overseas, while also setting out the FMA’s main areas of focus for the next three years. These areas of focus are:

  • improving audit quality through reviews of registered audit firms once every three years, and informing key stakeholders of potential areas of improvement;
  • monitoring changes in the new standards for auditor reporting, which will affect all New Zealand-listed issuers with a reporting period ending on or after 15 December 2016 (and can also be used earlier). For other FMC reporting entities that have a higher level of public accountability, the effective date will be periods ending on or after 31 December 2018; and
  • monitoring how the FMA performs quality audit reviews. To align with international practice, the FMA has taken over the performance of these reviews from the Chartered Accountants Australia and New Zealand, formerly New Zealand Institute of Chartered Accountants.

The FMA’s Plan is available here, and the associated press release is available here.


Gambling review discussion document released

Internal Affairs Minister Hon Peter Dunne has announced the publication of a paper on the sustainability of community funding derived from pub and club gaming machines. The discussion paper, which aims to facilitate public participation in the process, is the latest step in the Government's review of the ‘class 4’ gambling sector, begun in October of last year. The paper:

  • describes the characteristics of the sector;
  • explores some of the challenges faced by people in class 4 gambling; and
  • asks specific questions of submitters on the development of an effective regulatory model that maximises community funding without increasing gambling-related harm in the community.

The review aims to understand the dynamics of the class 4 sector, what they mean for the current regulatory framework, and is being undertaken in an effort to reduce unnecessary regulation while ensuring that the proceeds of class 4 gambling are sustainably reinvested into the community. Submissions on the discussion paper are due by 12 August.

The Minister’s press release is available here, while more information on the review is available on the Department’s website here.


Government releases findings of foreign trust inquiry

The Government has released the findings of the independent inquiry (Inquiry) into foreign trust disclosure rules and announced the steps it is taking to strengthen them. Led by John Shewan, the Inquiry was convened in the wake of the controversy surrounding the ‘Panama Papers’. The Inquiry examined whether the current disclosure rules relating to foreign trusts operating in New Zealand accord with New Zealand's international commitments, and if practical improvements could be made to the disclosure regime.

While the Inquiry found that foreign trusts can be an important tool, it also recommended strengthening the disclosure regime applying to foreign trusts by:

  • strengthening the initial registration requirements for foreign trusts, and permitting regulatory agencies to search the register;
  • requiring foreign trusts to file an annual return, including financial statements and details of distributions; and
  • additionally, improving anti-money laundering rules.

 When announcing the Inquiry’s findings, Finance Minister Hon Bill English stated that the Government will look to implement the Inquiry’s recommendations after officials have reviewed the report and reported back to Ministers. A formal Government response (and any plans for legislative change) will be issued in a few weeks.

Regarding the Inquiry’s findings, the Revenue Minister, Hon Michael Woodhouse highlighted the Government’s work with the OECD to develop a global response to Base Erosion and Profit Sharing tax strategies (BEPS). BEPS allow multi-national companies to pay little or no tax as the result of shifting company profits to countries with low tax rates. In doing so, Minister Woodhouse announced the next steps that the Government is undertaking to meet the OECD’s international action plan on BEPS, which was published in October 2015. These next steps include:

  • creating stronger rules around foreign parent companies receiving excessive payments from New Zealand companies;
  • developing greater disclosure requirements for foreign multi-nationals; and
  • future data-sharing with foreign authorities.

The Minister’s press release associated with the Inquiry is available here. The full Inquiry report can be found here, and the Government’s BEPS action plan can be accessed here.


Government responds to Law Commission’s report on the Crown in court

The Government has published its response to the Law Commission’s report, The Crown in Court (Report), which considers the infrastructure supporting the Crown’s involvement in litigation.

Tabled in Parliament on 16 June 2016, the Government’s response only addresses Part One of the Report, which relates to a review of the Crown Proceedings Act 1950. The Government intends to respond separately to Part Two of the report, which considers the use of national security information in proceedings.

The Report, published in December 2015, made recommendations relating to direct liability of the Crown, the introduction of new legislation, declaratory orders and in rem (Court action in relation to property) proceedings. Notably, the Report recommended that:

  • the Crown should be able to be sued in tort as a private individual and held directly liable and that the Courts should develop kinds of torts for which the Crown is liable;
  • statutory immunity for Crown employees should be retained, but that this immunity should not affect the liability of the Crown;
  • indemnity should be paid by the Government department responsible;
  • Courts have the power to grant any remedy in civil proceedings against the Crown;
  • the Crown Civil Proceedings Bill should be enacted and should include a schedule detailing existing immunity provisions for Crown employees;
  • a statutory indemnity should be enacted for ministers of the Crown;
  • the court must make a declaratory order about a party’s rights and entitlements where public interest requires; and
  • the current exclusion against bringing in rem proceedings against the Crown should be retained.

Responding to the Report, the Government rejected the Commission’s proposals in relation to extending Crown liability on the basis that it would raise significant constitutional and fiscal issues. In particular, the Government considered that because the Crown is a unique type of litigant (eg it cannot be wound up and is required by law to act in ways that may be to the detriment of private citizens), many of the recommendations were not suitable.

While the Government agreed that the Crown Proceedings Act should be simplified, it did not consider this a current legislative priority. The Government’s response noted that declaratory orders were already being considered by the Commission in relation to its current review of the Declaratory Judgments Act 1908, and agreed with the report’s recommendation to continue the exclusion against bringing in rem proceedings against the Crown.

The Commission first began work on Part One of its review in the 1980s and 1990s following significant changes to the public service. Picking up on this work in July 2011, the Commission reviewed the Crown Proceedings Act with a view to update the legislation in light of the modern governmental structure. The production of Part Two of the report was referred to the Commission by Hon Amy Adams, the Minister Responsible for the Law Commission, in November 2014.

The Report’s recommendations in relation to new legislation will be revisited when the Government considers it a more appropriate time to do so.

The Government’s response can be read here. A full copy of the Law Commission’s report is available here.


Ombudsman publishes additional OIA guidance

The Office of the Ombudsman has published new guides regarding the operation of the ‘public interest test’ and the ability of entities to charge requesters for information as part of the official information regime. The new guides are a result of a review that the Office is undertaking of all existing guidelines, while the publications of guidelines (and periodic updates to them) are part of the Ombudsman's role and responsibilities under the Official Information Act 1982 (OIA).

The new guide on the public interest test concerns section 9(1) of the OIA and section 7(1) of the Local Government Official Information and Meetings Act 1987 (LGOIMA). The guide contains discussion and case studies in respect of the kinds of public interest considerations that can favour the disclosure of official information and explains that “public interest” in this context is something in the best interests of society. The guide further demonstrates how the test balances the public interest versus a need to withhold information in certain circumstances. Additionally, it outlines factors that can affect the weight of the public interest disclosure, namely: transparency; participation; accountability; administration of justice; and health, safety, and the environment. The guide also outlines alternative mechanisms agencies can use to strike this balance, including that an agency can release particular information with names and other identifying information deleted to address privacy concerns.

The new guide on charging concerns the cost of requesting official information and when it is appropriate for this charge to be passed on to a requestor. Under both the OIA and LGOIMA, agencies can make reasonable charges for supplying information. Generally, it is not reasonable to charge for simple requests. In some instances however, it may be reasonable to recover some of the costs associated with requests if they require considerable labour and materials. What is considerable will depend on the circumstances of each case.

The guide therefore sets out real life case studies and a sample estimate of costs in order to provide concrete examples for those deciding when a charge is appropriate. The guide also informs requesters of when they may reasonably be expected to contribute to the costs an agency incurs when providing them with the information they have sought.  

The new guide on the public interest test can be found here. The new guide on charging can be found here.


Progress of legislation

New Bills

Fire and Emergency New Zealand Bill
Type of Bill: Government
Member in Charge: Hon Peter Dunne
This Bill intends to repeal the Fire Service Act 1975 and Rural Fires Act 1977 and would create a single, unified fire services organisation for New Zealand. The Bill is a response to two reviews that took place in 2012 and 2015 which examined mandate, rural and urban governance and support structures, legislation modernisation, funding, and co-ordination with other emergency services. The Bill aims to allow Fire and Emergency New Zealand to continue as a Crown entity but that it combine rural and urban fire services. It is intended that local committees would ensure this unified body will remain responsive to risks and respond efficiently to the needs of surrounding communities.

Food Safety Law Reform Bill
Type of Bill: Government
Member in Charge: Hon Jo Goodhew
This omnibus bill aims to amend the Food Act 2004, the Animals Products Act 1999, and the Wine Act 2003 to address findings of a 2013 inquiry into food safety which followed the Fonterra botulism scare. While New Zealand’s fundamental model would not change under the Bill, it aims to address the way in which food risks are managed and enable regulations to set requirements for food plans. These requirements could include specifications in respect of the form and content of registered risks, the training required to operate a food plan, and how amendments can be verified. The Bill also seeks to confirm that the regulator is the primary body for persons and agencies to report to when carrying out functions under the principal Acts.

Imprest Supply (First for 2016/17) Bill
Type of Bill: Government
Member in Charge: Hon Bill English
This Bill has since passed into law and is discussed in the Acts Assented section below.

Local Government Act 2002 Amendment Bill (No 2)
Type of Bill: Government
Member in Charge: Hon Peseta Sam Lotu-Iiga
This Bill aims to amend the Local Government Act 2002 to allow additional functions to be transferred across local authorities. In this respect, clause 7 of the Bill outlines factors that must be had regard to when assessing a transfer proposal. The Bill also intends to give control to the Local Government Commission to initiate its own investigations in relation to reorganisations under clause 35. Additionally, the Bill would provide for the establishment and operation of a greater range of council-controlled organisations (CCO). Clause 5 defines the meaning of a CCO and adds new definitions of substantive CCOs, multiply owned CCOs, water service CCOs, and transport CCOs.

Trade (Anti-dumping and Countervailing Duties) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Paul Goldsmith
This Bill aims to amend the Dumping and Countervailing Duties Act 1988. Under the principal Act there is no public benefit test when determining what a dumped good is. Goods are considered dumped if the export price to New Zealand is less than the price they are sold for in their own home market. Penalties are imposed on unfairly priced products under this test. The Bill intends to introduce a public benefit test which would weigh up benefits of at-the-border duties on dumped products and subsidised goods against the cost to users of the product. This is intended to allow the regime to take into account whether consumers benefit from lower prices, more choice, availability, and quality or if this is outweighed by the effect on the industry. Under the proposed public benefit test, factors such as competition and consumer welfare must be considered before an anti-dumping or a countervailing duty is imposed.


Bills awaiting first reading

Consumer Guarantees (Removal of Unrelated Party Lender Responsibility) Amendment Bill
Customs and Excise (Prohibition of Imports Made by Slave Labour) Amendment Bill
Education (Charter Schools Abolition) Amendment Bill
Legislation Amendment Bill
Maritime Crimes Amendment Bill
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Our Work Our Future Bill
Public Works (Prohibition of Compulsory Acquisition of Māori Land) Amendment Bill
Rates Rebate (Retirement Village Residents) Amendment Bill


Bills defeated

Overseas Investment (Protection of New Zealand Homebuyers) Amendment Bill
Member in Charge: Phil Twyford
60 in favour: Labour 32; Green Party 14; New Zealand First 12; Māori Party 2.
61 Against: National 59; Act 1; United Future 1.

Keep Kiwibank Bill
Member in Charge: David Parker
60 in favour: Labour 32; Green Party 14; New Zealand First 12; Māori Party 2.
61 Against: National 59; Act 1; United Future 1.

Parental Leave and Employment Protection (6 Months’ Paid Leave) Amendment Bill
This vote took place after the second reading of the Bill. The Government subsequently issued a financial veto certificate. A Government is entitled to take this measure if a bill has a more than minor effect on the Government's fiscal aggregates. After the certificate was issued, the bill had its third reading but no vote was taken.
Member in Charge: Sue Moroney
61 in favour: Labour 32; Green Party 14; NZ First 12; Māori Party 2; United Future 1.
60 Against: National 59; Act 1.


Bills before Select Committee

Submissions open

Bill

Select Committee

Closing date for Submissions (2016)

Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill

Social Services

28 July

Contract and Commercial Law Bill

Justice and Electoral

12 August

Local Government Act 2002 Amendment Bill (No 2)

Local Government and Environment

28 July

Ngāi Te Rangi and Ngā Pōtiki Claims Settlement Bill

Māori Affairs

6 July

Taxation (Annual Rates for 2016-17, Closely Held Companies, and Related Matters) Bill

Finance and Expenditure

29 July

Te Awa Tupua (Whanganui River Claims Settlement) Bill

Māori Affairs

6 July

Te Ture Whenua Māori Bill

Māori Affairs

14 July

Trans-Pacific Partnership Agreement Amendment Bill

Foreign Affairs, Defence and Trade

22 July

Trade (Anti-dumping and Countervailing Duties) Amendment Bill

Commerce Committee

11 August


Submissions closed

Bill

Select Committee

Report due (2016)

Civil Defence Emergency Management Amendment Bill

Government Administration

9 August

Education Legislation Bill

Education and Science

30 June

Financial Assistance for Live Organ Donors Bill

Health

23 September

Geographical Indications (Wine and Spirits) Registration Amendment Bill

Primary Production

17 September

Healthy Homes Guarantee Bill (No 2)

Government Administration

4 November

Kermadec Ocean Sanctuary Bill

Local Government and Environment

2 August

Land Transfer Bill

Government Administration

15 September

New Zealand Horticulture Export Authority Amendment Bill

Primary Production

29 September

Ngāti Pūkenga Claims Settlement Bill

Māori Affairs

13 October

Ngatikahu ki Whangaroa Claims Settlement Bill

Māori Affairs

13 October

Papawai and Kaikokirikiri Trusts Amendment Bill

Māori Affairs

2 September

Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill

Commerce

9 August

Rangitāne o Manawatu Claims Settlement Bill

Māori Affairs

15 September

Resource Legislation Amendment Bill

Local Government and Environment

6 September

Sale and Supply of Alcohol (Display of Low-alcohol Beverages and Other Remedial Matters) Amendment Bill

Justice and Electoral

5 November

Social Security Legislation Rewrite Bill

Social Services

15 September

Substance Addiction (Compulsory Assessment and Treatment) Bill

Health

15 September

Taranaki Iwi Claims Settlement Bill

Māori Affairs

15 September

Tauranga Moana Iwi Collective Redress and Ngā Hapū o Ngāti Ranginui Claims Settlement Bill

Māori Affairs

13 October

Te Atiawa Claims Settlement Bill

Māori Affairs

15 September

Wildlife (Powers) Amendment Bill

Local Government and Environment

29 September

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.

Agricultural Compounds and Veterinary Medicines Amendment Bill as reported by the Primary Production Committee
Births, Deaths, Marriages, and Relationships Registration (Preventing Name Change by Child Sex Offenders) Amendment Bill
Building (Pools) Amendment Bill
Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill
Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill
Māori Purposes Bill
Minimum Wage (Contractor Remuneration) Amendment Bill as reported by the Transport and Industrial Relations Committee
Public Collections and Solicitations (Disclosure of Payment) Bill
Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill
Statutes Amendment Bill as reported by the Government Administration Committee
Taxation (Income-sharing Tax Credit) Bill


Bills awaiting third reading

Appropriation (2016/2017 Estimates) Bill
Canterbury Property Boundaries and Related Matters Bill
Child Protection (Child Sex Offender Register) Bill
Commerce (Cartels and Other Matters) Amendment Bill
Drug and Alcohol Testing of Community-based Offenders, Bailees and Other Persons Legislation Bill (formerly the Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill)
Electronic Monitoring of Offenders Legislation Bill
Evidence Amendment Bill
Insolvency Practitioners Bill
Judicature Modernisation Bill
Natural Health and Supplementary Products Bill (formerly the Natural Health Products Bill)
Ngāruahine Claims Settlement Bill
Royal New Zealand Foundation of the Blind Act Repeal Bill
Shop Trading Hours Amendment Bill
Social Security (Extension of Young Persons Services and Remedial Matters) Amendment Bill


Acts awaiting assent

Official Information (Parliamentary Under-Secretaries) Amendment Bill


Acts assented

Appropriation (2015/16 Supplementary Estimates) Act
This Act provides parliamentary authorisation of the individual appropriations and changes contained in ‘The Supplementary Estimates of Appropriations for the Government’ for the year ended 30 June 2016. These estimates were presented to the House as part of the 2016 Budget process.

Climate Change Response (Removal of Transitional Measure) Amendment Act 2016
This Act amends the Climate Change Response Act 2002. The Act phases out the transitional one-for-two surrender obligations in the Emissions Trading Scheme. Under this rule, non-forestry worker participants in the Scheme are only obligated to submit one emissions unit for every two tonnes of carbon dioxide equivalent of greenhouse gas they omit. When introduced in 2009, this rule was intended to be a transitional measure to moderate the initial impacts of the scheme on business owners. The Act will phase out the one-for-two rule from January 2017 with full obligations for non-forestry workers becoming mandatory under the Emissions Trading Scheme from January 2019.

Coroners Amendment Act 2016
This Act amends the Coroners Act 2006 as a result of a targeted review of the principal Act and makes a number of changes to the coronial process. The Act has an increased focus on the timeliness of the coronial process and in general emphasises the role and needs of the families of the deceased. For example, the Act sets out that the Chief Coroner is to monitor inquiries not completed within one year and at regular intervals, while section 54 of the Act requires the Chief Coroner to publish a list and details of incomplete inquiries. Further, section 16 of the Act allows a coroner to direct a pathologist to perform a preliminary inspection of a body and may use medical imaging technology to do so. The Act also modifies the way in which suicide is reported in the media, including on social media. If the facts support a suspected suicide before the coroner has made a finding, news media are able to report this and no longer need to use euphemisms such as “there were no suspicious circumstances”. However, in order to prevent copy-cat scenarios, publishing the method that a person has used in a suicide cannot be published.

Customs and Excise (Tobacco Products—Budget Measures) Amendment Act 2016
This Act amends the Customs and Excise Act 1996 by introducing four cumulative ten percent increases to the duties on all tobacco products. The first increase will occur in January 2017 to those duties in force at 31 December 2016 with the fourth and final increase occurring on 1 January 2020 to those duties in force at 31 December 2019. The Act is a measure announced as part of the Budget 2016. The increases in duties are intended to deter New Zealanders from purchasing tobacco products and are part of a suite of health measures aimed at making New Zealand smoke-free by 2025.

Health (Protection) Amendment Act 2016
This Act concerns the management of infectious diseases and amends the Health Act 1956 by introducing principles that practitioners and courts must take into account when managing health risks. Section 7 of the Act makes explicit that the overarching principle in the Health Act is the protection of public health. The Act also increases the range of infectious diseases that are notifiable under the principal Act. Additionally, the Act bans UV tanning services for persons under 18 and sets out infringement provisions accordingly.

Hineuru Claims Settlement Act 2016
This Act gives effect to the deed of settlement signed between the Crown and Hineuru that agrees to the full and final settlement of the historical Treaty of Waitangi claims of Hineuru. The Act also formally records a Crown apology to Hineuru. The deed and Act provide financial and commercial redress of $25 million, a $2 million fund for cultural development and the return of a number of sites to Hineuru that are significant to the iwi.

Human Rights Amendment Act 2016
This Act amends the Human Rights Act 1993. Most significantly, the Act establishes a new Disability Rights Commissioner whose role is to lead the Human Rights Commission’s work on disability rights under section 6. This is the first formal role of its kind in New Zealand. Priorities of the Commission under the Act have accordingly been amended to include disability rights. The Act also allows the Commission to establish formal positions of leadership in the area of human rights according to need.

Imprest Supply (First for 2016/17) Bill
The Act provides the Government financial authority to incur expenses and make capital injections from the start of the 2016/17 financial year until the Appropriation (2016/17) Bill is passed. The financial authorities provided for in this Act will be repealed upon commencement of the Appropriation (2016/17 Estimates) Bill.

Residential Tenancies Amendment Act 2016
This Act amends the Residential Tenancies Act 1986 by creating a requirement that regulations on residential landlords be introduced in respect of smoke alarms and insulation. The content of these regulations have since been confirmed. As of 1 July landlords must ensure that smoke alarms are installed at residential properties, although it is the responsibility of the tenant to ensure that batteries are maintained. Insulation requirements under the new regulations now require landlords to install and maintain certain standard of ceiling and underfloor insulation. Rental properties that already have insulation installed must be upgraded if the ceiling and underfloor insulation did not meet specific R-values at the time it was installed. Most properties have until 1 July 2019 to rectify this and install the appropriate insulation. Social housing providers have until 1 July 2016 to do so.

Riccarton Racecourse Act 2016
This Act repeals and replaces the Christchurch Racecourse Reserve Act 1878 (Reserve Act). The Act is designed to provide 40 hectares of racecourse land to be developed for housing in response to a housing shortage in Christchurch following the 2010 and 2011 earthquakes. The Act re-enacts provisions from the Reserve Act that have ongoing relevance. The Act is a companion Act to the Riccarton Racecourse Development Enabling Act 2016 set out below.

Riccarton Racecourse Development Enabling Act 2016
This Act’s purpose is to support Christchurch’s recovery following the 2010 and 2011 earthquakes by facilitating the expeditious development of residential land at Riccarton Racecourse. The Act sets out a development scheme whereby the Riccarton Racecourse Board may submit a scheme to the Minister that provides for the construction of a minimum of 180 affordable houses on the development. If the minimum affordable housing requirements are not met within five years of the plan approval, then compensation is available to the Crown under section 14 of the Act. Under section 10 of the Act, a scheme submitted must be accompanied by a deed that acknowledges the right of first refusal of Te Rūnanga o Ngāi Tahu in relation to the disposal of the development land.

Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016
This omnibus Act amends the Income Tax Act 2007; Tax Administration Act, Goods and Services Tax Act 1985; Kiwisaver Act 2006; Child Support Act 1991; Student Loan Scheme Act 2011; Gaming Duties Act 1971; and Accident Compensation Act 2001. The Act is said to facilitate easier communication with Inland Revenue by allowing the Commissioner of Inland Revenue to release general information such as statistical data without needing to seek approval from the Minister of Finance. The Act also enables the Ministry of Business, Innovation and Employment and the Ministry of Social Development to receive specific information from Inland Revenue. In respect of this information sharing, the Act specifically provides that this does not breach the Tax Administration Act 1994.


Legislative instruments

Anti-Money Laundering and Countering Financing of Terrorism (Definitions) Amendment Regulations 2016
Anti-Money Laundering and Countering Financing of Terrorism (Requirements and Compliance) Amendment Regulations 2016
Biosecurity (Bovine Tuberculosis—Cattle and Deer Levy) Order 2016
Biosecurity (National Bovine Tuberculosis Pest Management Plan) Amendment Order 2016
Building (Exempt Building Work) Order 2016
Chartered Professional Engineers of New Zealand Rules (No 2) 2002 Amendment Rules 2016
Commodity Levies (Winegrapes) Order 2016
Coroners (Salaries and Superannuation) Determination 2016
Customs and Excise (Expiry Date for Interim Arrangements for Information Sharing for Joint Border Management) Order 2016
Dairy Industry Restructuring (Subparts 5 and 5A of Part 2 of Act Disapplied to South Island) Order 2016
Education Council Rules 2016
Electoral (Expenditure Limit) Order 2016
Environmental Reporting (Topics for Environmental Reports) Regulations 2016
Environmental Reporting Act Commencement Order 2016
Financial Advisers (Definitions, Voluntary Authorisation, Prescribed Entities, and Exemptions) Amendment Regulations 2016
Financial Markets Conduct (Restricted Schemes) Order 2016
Financial Markets Conduct Amendment Regulations 2016
Financial Reporting Amendment Regulations 2016
Fisheries (Alteration of Quota Management Areas—Freshwater Eel) Order 2016
Fisheries (Commercial Fishing) Amendment Regulations 2016
Fisheries (Cost Recovery) Amendment Rules 2016
Fisheries (Declaration of Te Ahi Tarakihi Mātaitai Reserve) Notice 2016
Fisheries (Declaration of Tuhawaiki Mātaitai Reserve) Notice 2016
Fisheries (Declaration of Waikouaiti Mātaitai Reserve) Notice 2016
Fisheries (Notification of Te Ahi Tarakihi Mātaitai Reserve and Tāngata Tiaki/Kaitiaki) Notice 2016
Fisheries (Notification of Tuhawaiki Mātaitai Reserve and Tāngata Tiaki/Kaitiaki) Notice 2016
Fisheries (Notification of Waikouaiti Mātaitai Reserve and Tāngata Tiaki/Kaitiaki) Notice 2016
Fisheries (Reporting) Amendment Regulations 2016
Fisheries (Schedule 8) Order 2016
Gambling (Class 4 Net Proceeds) Amendment Regulations 2016
Gambling (Problem Gambling Levy) Regulations 2016
Harmful Digital Communications (Appointment of Approved Agency) Order 2016
Hazardous Substances and New Organisms Amendment Act 2015 Commencement Order 2016
Health Practitioners (Protected Quality Assurance Activity—Royal Australasian College of Surgeons—Portfolio Programme) Notice 2016
Housing Accords and Special Housing Areas (Queenstown—New June 2016 Areas) Order 2016
KiwiSaver Amendment Regulations 2016
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2016
Legal Services Amendment Regulations 2016
Local Government Elected Members (2015/16) (Certain Local Authorities) Determination 2015 Amendment Determination (No 2) 2016
Local Government Elected Members (2016/17) (Auckland Council and Local Boards) Determination 2016
Local Government Elected Members (2016/17) (Certain Local Authorities) Determination 2016
Local Government Members (2016/17) (Canterbury Regional Council) Determination 2016
Maritime Levies Regulations 2016
Maritime Security (Charges) Regulations 2016
Medicines (Designated Prescriber—Registered Nurses) Regulations 2016
Misuse of Drugs Amendment Regulations 2016
Oamaru Licensing Trust (Abolition of Wards) Order 2016
Overseas Investment Amendment Regulations 2016
Public Finance (Transfers Between Outputs) Order 2016
Rates Rebate (Specified Amounts) Order 2016
Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
Residential Tenancies Amendment Rules 2016
Shipping (Charges) Amendment Regulations 2016
Social Security (Long-term Residential Care) Amendment Regulations 2016
State Sector (Ministry for Primary Industries) Amendment Order 2016
State Sector (New Zealand Food Safety Authority) Amendment Order 2016
Veterans’ Support Amendment Regulations (No 3) 2016
Wine (Grape Wine Levy) Order 2016


In the week ahead

What’s coming up in the House

When the House resumes on Tuesday 5 July, the Government will look to complete first readings of the Maritime Crimes Amendment Bill, the Fire and Emergency New Zealand Bill, and the Telecommunications (Property Access and Other Matters) Amendment Bill. Wednesday and Thursday will be devoted to the Committee stage of the Appropriation (2016/17 Estimates) Bill.


In consultation

New

Who

What

By when (2016)

Commerce Commission

Consultation on reviewing input methodologies: form of control; technology in the energy sector; airport profitability assessment; and RAB indexation and the Cost of Capital review

28 July

Consultation on the Telecommunications Development Levy for the 2015/16 year

11 November

Department of Conservation

Application for a marine mammal watching permit from Package Travel

6 July

Application for marine mammal watching in the Kaikoura Peninsula to operate commercial tours from kayaks

12 July

Application for marine mammal watching from Cape Soucis to Havelock by Catamaran Sailing Charters

12 July

Intention to grant concession to Eastland Network Ltd to construct and run an Electricity Substation on the Opoutama Sections Conservation Area in the Hawke’s Bay

29 July

Consultation on the Threat Management Plan for New Zealand sea lions/rāpoka

5 August

Paparoa National Park Management Plan Review

5 August

Intention to grant a lease concession to Bush Railway and Old Sawmill Trust for a lease/licence over part of the Patetere Scenic Reserve at Mamaku

12 August

Whirinaki Te Pua-a-Tāne Conservation Management Plan consultation

16 August

Proposal to dispose of conservation land in North West Nelson Forest Conservation Park

17 August

Partial lifting of Specially Protected Area Status, Murchison Mountains to enable public access without a permit

26 August

Aoraki/Mount Cook National Park Management Plan Review; pre-draft consultation

28 October

Department of Internal Affairs

Consultation on how funding from class 4 gambling can be sustained into the future

12 August

Electricity Authority

A file format for exchanging generally available retail tariff plan data

9 August

WAG discussion paper: Wholesale market information – Review of disclosure exclusions

23 August

Food Standards New Zealand

Proposal to consider options to regulate foods containing lupin as a food allergen

28 July

Proposal to assess the public health and safety risk of chemicals which may migrate from packaging materials into food, and to identify any risks

5 August

Application to request the extension of use of propionates as anti-microbial preservatives in processed meat products

10 August

Application to seek permission to irradiate blueberries and raspberries for phytosanitary purposes against fruit flies and other critical plant pests, at levels between 150 Gray (Gy) and 1 kGy

10 August

Application to extend the use of the food additive, L-cysteine, to limit enzymatic browning of cut avocado and banana and so extend the shelf life

10 August

Application is to permit the addition of water to dilute high sugar to aid fermentation in the production of wine, sparkling wine and fortified wine

10 August

Inland Revenue Department

Commissioner’s application of section IW 1: Payment of Shortfall Penalty Using Losses, draft Standard Practice Statement

15 July

Draft Interpretation Statement: how to claim a foreign tax credit when a foreign tax is covered by a double tax agreement

29 July

Draft Interpretation Statement: Goods and Services Tax – single supply or multiple supplies

29 July

Issues Paper: Donee organisations – clarifying when funds are applied wholly or mainly to specified purposes within New Zealand

29 July

Re-consultation: Income tax – date of acquisition of land

10 August

Interpretation Statement update: “permanent place of abode” test in s YD 1(2)

10 August

Draft Practice Statement: Disputes resolution process commenced by the Commissioner of Inland Revenue

12 August

Draft Standard Practice Statement: Disputes resolution process commenced by a taxpayer

12 August

Ministry for Primary Industries

Review of fisheries sustainability measures for 1 October 2016

11 July

Proposed regulations to implement the Catch Documentation Scheme for southern bluefin tuna

15 July

Proposed Animal Products Notice: Disposal of Non-conforming dairy material or dairy product

19 July

Review of cost recovery framework for the Ministry for Primary Industries

21 July

Proposed craft risk management standard for vessels

5 August

Proposed changes to the National Microbiological Database

10 August

Ministry for the Environment

Proposed technical updates to New Zealand Emissions Trading Scheme regulations for 2016

6 July

Ministry of Business, Innovation, and Employment

Proposed National Policy Statement on urban development capacity

15 July

Cross submissions on Targeted Review of the Commerce Act 1986

21 July

Ministry of Health

Increasing rates of deceased organ donation: consultation document

29 July

Standardised Tobacoo Products and Packaging Draft Regulations

29 July

Ministry of Justice

Proposed changes to contract services and to the practice standards for legal aid providers

25 July

Pharmac

Enoxaparin dosium and plerixafor proposal

8 July

Proposal for idarucizumab and dabigatran

8 July

Proposal relating to pembrolizumab (Keytruda), nivolumab (Opdivo), posaconazole (Noxafil) and raltegravir (Isentress)

11 July

Proposal for sole subsidised supply of progestogen-only long-acting intra-uterine system (LIUS) (Mirena)

11 July

Proposal to list cholic acid (Cholebiol) for rare disorder

12 July

Proposal to award sole supply of volatile anaesthetics in DHB hospitals

18 July

Consultation on PHARMAC’s Pacific Responsiveness Strategy

29 July

Reserve Bank

Default option for publication of submissions

4 August

Review of outsourcing policy for registered banks

12 August

Dual registration policy for small foreign banks

24 August

Standards New Zealand – Joint Standards

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Safety standards for household and similar electrical appliances: electric tumble dryers – AS/NZS 60335.2.11:2009

15 July

Safety standards for household and similar electrical appliances: commercial dispensing appliances and vending machines Amendment 2 – AS/NZS 60335.2.75:2013

15 July

Safety standards for household and similar electrical appliances: requirements for microwave ovens, including combination microwave ovens Amendment 2 – AS/NZS 60335.2.25:2011

15 July

Safety standards for household and similar electrical appliances: requirements for commercial microwave ovens – AS/NZS 60335.2.90:2016

15 July

Safety standards for household and similar electrical appliances: requirements for hover boards – AS/NZS 60335.2.XX:2016

15 July

Safety standards for electric motor-operated hand-held tools, transportable tools and lawn and garden machinery: requirements for hand-held reciprocating saws – AS/NZS 62841.2.11:2016

15 July

Safety standards for electric motor-operated hand-held tools, transportable tools and lawn and garden machinery: requirements for transportable bench grinders – AS/NZS 62841.3.4:2016

15 July

Safety standards for electric motor-operated hand-held tools, transportable tools and lawn and garden machinery: requirements for transportable cut-off machines – AS/NZS 62841.3.10:2016

15 July

Approval and test specification: general requirements for electrical equipment Amendment 5 – AS/NZS 3100:2009

15 July

Standard to provide equipment designers, manufacturers, suppliers, and testing facilities of 406 MHz satellite distress beacons – AS/NZS 4280.2:2016 

4 August

Standard to provide general requirements and test methods for manufacturers, testing authorities and certifying bodies concerned with electrical apparatus for the measurement of the concentration of oxygen and toxic levels of gases and vapours – AS/NZS 4641:2016 

4 August

Standard to provide limits and methods of measurement for short range devices – AS/NZS 4268:2016 

8 August

Standard is to specify general requirements for luminaires, incorporating electric light sources for operation from supply voltages up to 1 000 V – AS/NZS 60598.1:2016

8 August

Child restraint systems in motor vehicles – AS/NZS 1754:2013 A1:2016 

12 August

Standard is intended to support demand response programs which optimize the operation of the electricity supply system – AS/NZS 4755.1:2016 

30 August

Standard to provide minimum requirements for submarine pipelines – AS/NZS 2885.4:2016

1 September

Current

Who

What

By when (2016)

Department of Conservation

 

Intention to grant a concession to Milford Sound Development Authority in Milford Sound/Piopoitahi Fiordland National Park

8 July

Intention to grant a concession to Pioneer Energy Limited on the Fraser River strip

12 July

Kahurangi National Park Management Plan amendment to extend the Heaphy Track mountain biking season

12 July

Review of the Westland Tai Poutini National Park Management Plan in accordance with the National Parks Act 1980

21 October

New listings and changes to the threatened status of New Zealand vascular plant taxa

31 July

New listing of the threatened status of New Zealand vascular plants

31 July

Electricity Authority

 

Review of distributed generation pricing principles

26 July

Transmission pricing methodology: second issues paper

26 July

Inland Revenue Department

Payment of shortfall penalty using losses, draft standard practice statement

15 July

Ministry of Foreign Affairs and Trade

International climate change negotiations and issues

ongoing

Ministry of Health

 

Discussion Document: New Zealand Health Research Strategy

29 July

The Regulation of Natural Health Products. List of draft permitted substances and conditions

31 October

Reserve Bank

Default option for publications of submissions

4 August

 

Revised policy proposals for the review of the outsourcing policy for registered banks

12 August

Standards New Zealand

 

 

Particular requirements for shavers, hair clipper, and similar appliances: AS/NZS 60335.2.8:2013

15 July

Particular requirements for transportable cut-off machines

15 July

Testing of optical fibre cabling: DR AS/NZS 14763.3:2016

25 July

WorkSafe

Consultation on Good Practice Guidelines Managing a Small Forest Harvest

22 July


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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