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Watching Brief – March 2015

Home Insights Watching Brief – March 2015

Matter of opinion

Political Winds from the North

In less than a week the new MP for Northland will be announced. If Winston Peters wins the seat in the by-election, National will continue with 59 seats out of 121 (rather than 59 seats out of 120). This means that National would no longer be able to rely on ACT support alone (as it currently can) to pass controversial legislation. Most often, this would not be a problem given broad alignment between National and its support partners ACT and United Future – with the Māori Party available as a backstop. However, National’s major policy reform for 2015, and possibly this electoral term – the Resource Management Act, is opposed to in different extents by not only the Māori Party, but Peter Dunne also.

National seemingly never anticipated Peters would throw his hat in the ring (in retrospect, it feels like an inevitable development). It put up a worthy local, but relatively uninspiring candidate. The type that doesn’t get introduced at a candidates’ debate, and is best suited for a safe seat or one that can be happily lost. It also explains what can only be described as a panicked response to Peters’ arrival: promises of up to $70 million for Northland development after years of the issue being on the slow burner, allowing Peters to claim credit for it all. National looked desperate and was lampooned as such (“Bridges’ bridges” and the “buy-election”). Everything that followed then had a touch of the desperate too, including the trail of senior Ministers heading up to Northland, including the PM himself.

So can National recover from what has been so far, an inglorious campaign? The most recent polling shows that the race between Osborne and Peters is tight – 35.5% for Peters and 33% for Osborne. The mindset amongst those who say they would vote for Peters is to send National a message that Northland has not been supported; part of this is a disappointment with former MP Mike Sabin and the lack of information around his resignation. Those indicating they will vote for Osborne consider Peters to be a “stirrer” and are happy to accept National’s promises rather than contrasting this with past neglect or attributing the gains to Peters.

Of interest, a record number of early votes have been cast in this by-election – more than double the early votes cast in the last general election (that is more than 10% of those enrolled in Northland). This at least is a positive development in a region with one of the lowest voting turnouts in New Zealand – an outcome that could also be attributed to Peters’ arrival on the scene. Another factor that could make the difference on the day is the dedicated and well resourced National support machine that will be running at full capacity, door knocking and getting supporters to the polling booths.

In relation to the future of the RMA reforms, if Peters wins, both Peters and Dunne will become pivotal, much to the frustration of National. Peters has claimed NZ First would support the reforms, as long as it thought they were sound and made sense, but these statements were intended to quell scaremongering in advance of the by-election. Based on past performance Peters is unlikely to pass over an opportunity to call the shots. Peter Dunne, on the other hand, has been opposed to the reforms but only when this didn’t matter. He will be under increasing and intensive pressure to toe National’s line and given his past form could well soften his stance. That is, if Peters succeeds on the night, it will be premature to make a call on the future of the RMA reforms. The picture just gets a lot more complicated – and interesting.

In the news

ACCC/AER publish paper on Economic Regulation of Infrastructure

As part of the ongoing Working Paper Series, the Australian Competition and Consumer Commission (ACCC) and the Australian Energy Regulator (AER) have published the paper titled International Insights for the Better Economic Regulation of Infrastructure. The paper is a result of a major study of seven key infrastructure areas (energy, telecommunications, postal services, water and wastewater, rail, airports and ports), spanning seventeen countries.

Key insights from the paper include:

  • regulators in most surveyed jurisdictions are assigned efficiency-based objectives. Those regulators tasked with broader remits, such as the promotion of social and environmental goals, often encounter conflicting regulatory objectives;
  • regulatory independence from government is a common feature of the surveyed jurisdictions.  However, the nature of ‘independence’ varies across countries, with some displaying signs of Ministerial involvement in regulation;
  • it is common for the collection of regulatory responsibilities for a number of infrastructure industries to be combined in a single institution;
  • in four of the five jurisdictions where multi-sectoral regulators exist, the multi-sectoral regulator also has responsibility for competition enforcement. There is a growing trend towards a single-institution model;
  • regulators are placing an increasing emphasis on forming processes for more effective engagement with consumers;
  • there are different and sometimes conflicting approaches among jurisdictions regarding issues of information asymmetry between regulators and regulated entities (ie balancing the trade-off between broad information collection powers, the protection of commercial-in-confidence information, and timelines in regulatory processes); and
  • swift decision-making through innovations such as 'alternative dispute resolution’ and negotiated settlements may come at the cost of diminished consultation and less transparency. 

As a working paper, the paper expresses the views of the contributing authors, rather than representing the views of the ACCC or AER.

The full paper can be accessed here.


Commerce Commission begins enforcement of unfair contract terms

From 17 March, the Commerce Commission can enforce the unfair contract terms provisions of the Fair Trading Act 1986 (the date at which the provisions took legal effect). Generally, an unfair contract term refers to a clause, in a standard form consumer contract, offered to the consumer on a take it or leave it basis. Commerce Commission Chair Dr Mark Berry stated that the Commission will focus on contracts in industries that have proven to be problematic overseas and previous areas of complaints.

The Commission urges businesses to be familiar with the Commission’s guidance on unfair contract terms. A copy of the current guidance can be found here. A fact sheet for consumers to help identify unfair contract terms is being developed by the Commission and will be released shortly.


Electricity Authority selects NZX as Reserve Manager

The Electricity Authority has announced the selection of NZX as the preferred supplier for the electricity market’s extended reserve manager role. This is a new role in the electricity industry, created in response to amendments to the Electricity Industry Participation Code 2010 that came into effect in August 2014. The extended reserve manager will be the market operations service provider responsible for the ongoing management of the extended reserve service, including procuring electricity demand.

The extended reserve arrangements are ultimately designed to add an additional level of security to New Zealand’s electricity supply, acting as a ‘last resort’ mechanism to regain balance in the event of a significant loss of electricity generation. If successful, the role should minimise any power outages for consumers if an unplanned event threatens the security of the network.

The new role aligns with the Electricity Authority’s statutory objective to promote competition, reliability and efficiency in the electricity industry for the long-term benefit of consumers.

NZX Chief Executive Tim Bennett describes the new market-based approach to securing extended reserve as being both innovative and practical. The role builds on NZX’s existing service provision activities to the Authority, and will be implemented alongside industry input.

The extended reserve manager will consult on the selection methodology shortly, with the first procurement schedule of extended reserve due to be delivered in late 2016.

The Electricity Authority announcement can be viewed here. Further information on the new role can be found here.


Membership of Labour’s External Reference Group for Future of Work Commission announced

Hon Grant Robertson, Labour Party’s Finance spokesperson and Chair of the Future of Work Commission (FWC), has announced the membership of the External Reference Group. The Group’s function is to guide the FWC’s work programme over the next two years and its membership consists of experts from across the business, union and academic communities.

The eight members of the External Reference Group are:

  • Helen Kelly (President of the CTU);
  • John Blakey (Chief Executive, Competenz ITO);
  • Linc Gasking (Founder and Chief Executive of 8i);
  • Michael Barnett (Chief Executive, Auckland Chamber of Commerce);
  • Matthew Tukaki (Chief Executive of EntreHub);
  • Prof Tim Bentley (Director, AUT Future of Work Programme);
  • Sue Ryall (Manager, Centre for Labour, Employment and Work, Victoria University); and
  • Victoria Crone (Managing Director, Xero).

Two further members are expected to be appointed in the following weeks, including an expert in Pasifika communities. The Group intends to meet on a monthly basis, with its first meeting held on 18 March. The full announcement by Hon Grant Robertson can be found here.


Minister releases Responsible Lending Code

Commerce and Consumer Affairs Minister, Hon Paul Goldsmith, has released the Responsible Lending Code (Code) for lenders in accordance with sections 9G and 9H of the Credit Contracts and Consumer Finance Act 2003 (Act). 

The Code provides guidance on the new Lender Responsibility Principles (Principles) introduced under the Act by the Credit Contracts and Consumer Finance Amendment Act 2014. The Principles include requiring lenders to exercise the care, diligence and skill of a responsible lender in advertising finance or credit and taking appropriate guarantees.

The purpose of the Code is to ensure consumers are better protected when borrowing by increasing information availability and insulating against lenders engaged in predatory practices.

The Code provides guidance on:

  • obligations during the lender/borrower relationship;
  • substantial hardship of borrowers and guarantors;
  • advertising;
  • assisting borrowers and guarantors to make informed decisions;
  • credit-related insurance, repayment waivers, and fees; and
  • default, repossession, and oppression.

The Code is not legally binding, but compliance will indicate conformity with the binding Principles. 

The Code and Principles come into force on 6 June and are available here.


Rotorua Lakes Council releases Te Arawa Partnership Proposal

The Statement of Proposal for a Te Arawa Partnership Model has been adopted by the Rotorua Lakes Council (Council) at a special meeting on 26 February and released for public consultation.

The Te Arawa Proposal is the result of reforms beginning in 2012 when the need for greater iwi engagement was first highlighted in a ruling from the Environment Court. Following the 2013 local government elections, a mutual commitment between Te Arawa and the Council provided for a new engagement mechanism to replace the Te Arawa Standing Committee. Following 12 months of research and iwi consultation, the Te Arawa Proposal was approved in principle by the Council in December 2014.

The Te Arawa Proposal paves the way for a new approach to council engagement with Māori and the obligations of iwi partnership and capacity building required by local government legislation. The Te Arawa Partnership Model would include:

  • creating an independent Te Arawa Board outside the Council to represent iwi interests (with  membership elected by the Te Arawa community at large);
  • the Te Arawa Board nominate, for Council consideration, representatives appointed to specified council committees, RMA consent hearing panels, and strategic working groups; and
  • voting rights for appointed Te Arawa representatives on various Council committees

The Te Arawa Partnership Model will be presented to the public through a series of information sessions in March. Consultation on the Te Arawa Partnership Model comes as the planned introduction of Maori wards by the New Plymouth District Council faces significant opposition. The collection of 4000 signatures opposing Maori wards has triggered a binding referendum now scheduled in May. The outcomes of the Te Arawa process will be of interest to a wide range of stakeholders in Rotorua and across New Zealand. 

The full Statement of Proposal, including the reasons for the proposal and the submission process, can be found here. Submissions on the Te Arawa Proposal are due by 17 April and can be made here.


Terms of Reference released for review of Financial Advisors Act 2008

The Terms of Reference (TOR) for the Review of the Financial Advisers Act 2008 (FA Act) and the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (FSP Act) have been released. The FA Act and the FSP Act are key to the promotion of sound investor decision-making in New Zealand. The FA Act regulates professional providers of financial advice and the FSP Act requires these providers to be registered and belong to an approved dispute resolution scheme. The Review will analyse the role of financial advice and financial service provider registrations, and assess the performance of the FA Act and FSP Act against regulatory objectives. The purpose of the TOR is to set the scope and objectives of the Review, including a high-level timeline of how the Review will be rolled out.

According to the Minister of Commerce and Consumer Affairs, Hon Paul Goldsmith, public release of the TOR was urged by the need for public access to quality information and advice to promote informed decision-making. Preliminary discussions with stakeholders concluded that while the current regulatory settings have improved the overall quality of financial advice, accessing that advice may be more difficult. 

The review will be led by the Ministry of Business, Innovation and Employment in conjunction with the Financial Markets Authority, Commission for Financial Capability, and Treasury (with stakeholder and consumer input). The Ministry’s preliminary analysis of the Review is due to be released for consultation in early May 2015, with a final report set to be published in July 2016. 

The full TOR can be found here.

Progress of legislation

New Bills

Environmental Protection Authority (Protection of Environment) Amendment Bill
Type of Bill: Members
Member in Charge: Meka Whaitiri
This Bill seeks to amend section 12 of the Environmental Protection Authority Act 2011 to add an objective of the Environmental Protection Authority (Authority) to protect, maintain, and enhance New Zealand’s environment. The additional objective would ensure that the Authority’s aim to protect the environment is clearly expressed in statute.

Fighting Foreign Corporate Control Bill
Type of Bill: Members
Member in Charge: Fletcher Tabateau
This Bill aims to prevent New Zealand from entering into international agreements with an investor-state dispute settlement provision. The Bill responds to New Zealand’s involvement in international trade negotiations, particularly the Trans-Pacific Partnership Agreement. The Bill would address concerns that investor-state dispute mechanisms prioritise the interests of international companies above those of the New Zealand public, by providing a right to seek compensation if domestic laws affect their business.

New Zealand Flag Referendums Bill
Type of Bill: Government
Member in Charge: Hon Bill English
This Bill would establish a process for holding two postal referendums to determine whether New Zealand should have a new flag. The first, using a preferential voting system, would determine which alternative flag design of four proposed is preferred by voters. The second referendum, using the First Past the Post voting system, would determine whether the alternative flag, or the current flag, is to be the flag of New Zealand. The voting period for each referendum would be three weeks, with the Governor-General enabled to change the dates for the conduct of the referendum. The Bill provides for an Electoral Commissioner who will be the Returning Officer for the referendums and will be responsible for implementing the Bill. Should the referendums result in a flag change, the Bill provides a mechanism for necessary change to the Flags, Emblems, and Names Protection Act 1981.

New Zealand International Convention Centre Act 2013 Repeal Bill
Type of Bill: Members
Member in Charge: Tracey Martin
This Bill seeks to repeal the New Zealand International Convention Centre Act 2013. The current Act provides for the construction and operation of an international convention centre by SkyCity and grants a number of changes to the regulatory regime applying to the SkyCity Casino. The Bill is a response to the request by SkyCity for financial assistance in constructing the convention centre and purports to reflect taxpayer concerns surrounding the efficacy of the current Act.

Remuneration Authority (Members of Parliament Remuneration) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Michael Woodhouse
This Bill aims to amend the Remuneration Authority Act 1977 to provide that the remuneration of members of Parliament will increase in line with the average public sector salary. The Bill seeks to fix salaries, superannuation subsidies, and personal benefits under section 16(2) of the Members of Parliament (Remuneration and Services) Act 2013, so that they can only move in line with the average ordinary time weekly earnings for full-time equivalent employees in the public sector (shown in the Quarterly Employment Survey). In the event of no upward (or downward) movement, salaries would be fixed at the same amount as for the previous year. Further, the Bill provides that salary determinations must be made on an annual basis while allowances are to be reviewed at intervals of no more than three years.


Bills awaiting first reading

Electoral (Adjustment of Thresholds) Amendment Bill
Environmental Protection Authority (Protection of Environment) Amendment Bill
Fighting Foreign Corporate Control Bill
Land Transport (Safer Alcohol Limits for Driving) Amendment Bill
Legislation Amendment Bill
Local Government (Auckland Council) Amendment Bill (No 3)
New Zealand International Convention Centre Act 2013 Repeal Bill
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Overseas Investment (Owning our Own Rural Land) Amendment Bill
Remuneration Authority Amendment Bill
SuperGold Health Check Bill
Underground Coal Mining Safety Bill


Bills defeated

Education (Breakfast and Lunch Programmes in Schools) Amendment Bill
Member in charge: Hon Metiria Turei
59 in favour and 61 against (National, ACT and United Future opposed)

Education (Food in Schools) Amendment Bill
Member in charge: Hon David Shearer
60 in favour and 60 against (National and Act opposed)

Electronic Data Safety Bill
Member in charge: Hon Clare Curran
59 in favour and 61 against (National, ACT and United Future opposed)

Healthy Homes Guarantee Bill
Member in charge: Phil Twyford
60 in favour and 60 against (National and Act opposed)


Bills before Select Committee

Submissions open

Bill

Select Committee

submissions Due (2015)

Coroners Amendment Bill

Justice and Electoral

26 March

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

Law and Order

23 April

Exclusive Economic Zone and Continental Shelf (Environmental Effects) (Transitional Provisions) Amendment Bill

Local Government and Environment

9 April

New Zealand Flag Referendums Bill

Justice and Electoral

23 April

Radiation Safety Bill

Health

22 April

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

Finance and Expenditure

Not yet called

Weathertight Homes Resolution Services Amendment Bill

Local Government and Environment 

16 April


Submissions closed

Bill

Select Committee

Report Due (2015)

Arts Centre of Christchurch Trust Bill

Local Government and Environment

30 March

Building (Earthquake-prone Buildings) Amendment Bill

Local Government and Environment

30 March

Christchurch City Council (Rates Validation) Bill

Local Government and Environment

30 March

Environmental Reporting Bill

Local Government and Environment

30 March

Gambling Amendment Bill (No 3)

Government Administration

6 May

Hawke's Bay Regional Planning Committee Bill

Māori Affairs

4 May

Health (Protection) Amendment Bill

Health

6 May

Health and Safety Reform Bill

Transport and Industrial Relations

30 March

Manukau City Council (Regulation of Prostitution in Specified Places) Bill

Local Government and Environment

30 March

Māori Language (Te Reo Māori) Bill

Māori Affairs

30 March

Organised Crime and Anti-corruption Legislation Bill

Law and Order

4 May

Policing (Cost Recovery) Amendment Bill

Law and Order

4 May

Regulatory Standards Bill

Commerce

30 March

Social Assistance (Portability to Cook Islands, Niue, and Tokelau) Bill

Social Services

4 May

Standards and Accreditation Bill

Commerce

31 March

Taxation (KiwiSaver HomeStart and Remedial Matters) Bill

Finance and Expenditure

28 April

Te Hiku Claims Settlement Bill

Maori Affairs

4 May

Te Kawerau ā Maki Claims Settlement Bill

Maori Affairs

4 May

Waitangi National Trust Board Amendment Bill

Māori Affairs

30 March

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
Harmful Digital Communications Bill
Housing Corporation Amendment Bill
Human Rights Amendment Bill
Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill
New Zealand Superannuation and Retirement Income Amendment Bill
Public Health Bill
Radio New Zealand Amendment Bill
Register of Pecuniary Interests of Judges Bill
Reserves and Other Lands Disposal Bill
Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill
Spending Cap (People's Veto) Bill
Taxation (Income-sharing Tax Credit) Bill


Bills awaiting third reading

Animal Welfare Amendment Bill
Animal Welfare Amendment Bill (No 2) (formerly part of the Statutes Amendment Bill (No 4))
Antarctica (Environmental Protection) Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Appropriation (2013/14 Confirmation and Validation) Bill
Biosecurity Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Births, Deaths, Marriages, and Relationships Registration Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Commerce (Cartels and Other Matters) Amendment Bill
Commodity Levies Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Construction Contracts Amendment Bill
Copyright Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Forests Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Friendly Societies and Credit Unions Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Governor-General Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Heavy Engineering Research Levy Amendment Bill
Immigration Amendment Bill (No 2)
Insolvency Practitioners Bill
Judicature Modernisation Bill
Judicial Conduct Commissioner and Judicial Conduct Panel Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Land Transport Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Land Transport Management Amendment Act 2008 Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Local Electoral Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Local Government Act 1974 Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Local Government Act 2002 Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Local Government (Auckland Council) Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Local Government Official Information and Meetings Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Marine Mammals Protection Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Misuse of Drugs Amendment Act 1978 Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
National Animal Identification and Tracing Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
National Parks Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Natural Health and Supplementary Products Bill (formerly the Natural Health Products Bill)
Ngāti Manuhiri Claims Settlement Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Objectionable Publications and Indecency Legislation Bill
Official Information Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Ombudsmen Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Parental Leave and Employment Protection (Six Months Paid Leave) Amendment Bill
Pork Industry Board Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Reserves Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Sale and Supply of Alcohol Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Sentencing Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Social Security Amendment Bill (No 3)
Social Security (Clothing Allowances for Orphans and Unsupported Children) Amendment Bill
Summary Proceedings Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Tariff Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Tokelau (Territorial Sea and Exclusive Economic Zone) Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Trade in Endangered Species Amendment Bill (formerly part of the Statutes Amendment Bill (No 4))
Wildlife Amendment Bill(formerly part of the Statutes Amendment Bill (No 4))


Acts awaiting assent

Countering Terrorist Fighters Legislation Bill


Acts assented

Remuneration Authority (Members of Parliament Remuneration) Amendment Act 2015
This Act amends the Remuneration Authority Act 1977 by providing a sole criterion for the Remuneration Authority to consider when assessing the remuneration of members of parliament. The Act ensures that the remuneration of members of Parliament will increase in line with the average public sector salary. It also amends the Members of Parliament (Remuneration and Services) Act 2013 to change the basis on which assessments of personal benefit are considered by the Remuneration Authority.


Legislative instruments

Hazardous Substances (Classes 6, 8, and 9 Controls) Amendment Regulations 2015
Hazardous Substances (Exempt Laboratories) Amendment Regulations 2015
Fisheries (Interim and Annual Deemed Values) Notice (No 3) 2003 Amendment Notice 2015
Fisheries (Notification of Ngā Hapū o Taiamai ki Te Marangi Tangata Kaitiaki) Notice 2015
Fisheries (Total Allowable Catch and Total Allowable Commercial Catch) Amendment Notice 2015
Housing Accords and Special Housing Areas (Western Bay of Plenty District) Order 2015
Non-bank Deposit Takers (Revocations and Amendments of Exemptions) Notice 2015
Veterans’ Support Amendment Regulations 2015
Veterans’ Support (Rates of War Pensions Act 1954 Allowances) Order 2015

In the week ahead

What’s coming up in the House

When the House resumes this week the Government will look to progress the Taxation (KiwiSaver HomeStart and Remedial Matters) Bill and the New Zealand Superannuation and Retirement Income Amendment Bill.

The House will enter into a three week recess from Thursday 2 April, resuming on Tuesday 28 April.

In committee

Recent Committee meetings

Select committees met over the last two weeks.

The Commerce Committee considered the 2013/14 annual reviews of Crown Fibre Holdings, the New Zealand Tourism Board and the Financial Markets Authority.

The Finance and Expenditure Committee considered the Report of the Controller and Auditor-General on Local Government: Results of the 2013/14 audits and considered the 2013/14 annual reviews of the Earthquake Commission, the Canterbury Earthquake Recovery Authority, Solid Energy and the Inland Revenue Department.

The Government Administration Committee considered the Gambling Amendment (No 3) Bill and considered the 2013/14 annual reviews of the Clerk of the House of Representatives, the Office of the Ombudsmen, and the Parliamentary Service.

The Intelligence and Security Committee considered the 2013/14 annual reviews of the Government Communications Security Bureau and the New Zealand Security Intelligence Service.

The Justice and Electoral Committee considered a Report of the Controller and Auditor-General on Challenges Facing Licensing Trusts.

The Law and Order Committee considered the Organised Crime and Anti-corruption Legislation Bill and the Policing (Cost Recovery) Amendment Bill.

The Local Government and Environment Committee was briefed by the Ministry for the Environment on the management of contaminated sites, and by the Controller and Auditor-General on financial scrutiny. It also considered a Report of the Controller and Auditor-General: on Water and roads: Funding and management challenges.

The Māori Affairs Committee continued to consider the Te Hiku Claims Settlement Bill.

The Primary Productions Committee heard evidence on the international treaty examination of the Agreement on Strengthening Implementation of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement on the South Pacific Region.

The Regulations Review Committee was briefed on legislation waiting to come into force by Order in Council.

In the courts

Canterbury Earthquake update – ministerial decision to be reconsidered

Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27

Governmental decisions in the aftermath of 2010 and 2011 Canterbury earthquakes have again been subjected to judicial criticism. 

The judgment concerns ministerial decisions on land damage and remediation announced in June 2011 and further purchase offers made in September 2012. The June 2011 decision established four residential zones and a strategy of purchase from insured owners in the worst affected (red zone) area. The September 2012 decision concerned uninsured or vacant land owners who were excluded from the 2011 purchase offer. Their offer was set at 50% of the 2007 land rating value compared to the 100% offers made to insured owners.

The Supreme Court majority declared that the September 2012 Crown offers to purchase uninsured residential or vacant land in the red zone were not lawfully made. The Minister for Canterbury Earthquake Recovery, Hon Gerry Brownlee, and Chief Executive of the Canterbury Earthquake Recovery Authority have been directed to reconsider their decisions in light of this judgment. The Court did not make a declaration as to the unlawfulness of the June 2011 decisions, considering it too late for a declaration to serve any useful purpose.

The Court considered three main issues in its judgment:

  • the nature of the Crown's June 2011 announcement;
  • whether the procedures under the Canterbury Earthquake Recovery Act 2011 (“Act”) were mandatory in the circumstances; and
  • what matters should have been considered in the 2012 Crown offers to purchase

The Court stated that the June 2011 announcement was not merely providing information but in effect made a number of decisions relating to the form and content of governmental response to the earthquakes. Those decisions should have been made under the processes outlined in the Act and a Recovery Plan would have been an appropriate mechanism under which the decisions should have been made. Without a Recovery Plan the purchase offers were unlawful under the Act.

The Court found that other factors should have been taken into account when the Crown made the September 2012 purchase offers. In determining whether the insured, uninsured and uninsurable should be treated differently the Crown failed to expressly take into account:

  • the recovery purpose of the Act;
  • that uninsured damage had already received compensation in the 2011 offers;
  • that government policy to promote evacuation of the red zone detrimentally effected the value of the uninsured property;
  • current living conditions in the red zone; and
  • the lack of public consultation.

The Chief Justice and William Young J dissented. Their Honours disagreed that the 2011 decisions could only be made under a Recovery Strategy or Plan, and that the decision to differentiate the insured from the uninsured or uninsurable was a relevant consideration.

A copy of the judgment can be found here.


Minister of Energy and Resources addresses Downstream 2015 Strategic Forum

Hon Simon Bridges, Minister of Energy and Resources, addressed the Downstream 2015 Strategic Forum, held in Auckland on 4 March. The annual Forum brings together leaders and professionals from across the energy industry to discuss challenges facing the sector.

The Minister reflected upon New Zealand's energy system in a highly positive light, covering the main areas of policy continuation and competition, customers and technology, and renewable advantage. 

The Minister claimed New Zealand’s security of supply, environmental sustainability, and energy equity or competitiveness is strong, if not perfect. 2014 was a record year for new electricity retailers entering the market and the normalisation of discounting and competitive offers, which is putting downward pressure on electricity prices. Enhancing competition will continue to be a focus throughout 2015.

The Minister reiterated the Forum’s emphasis that the energy sector should concentrate on the change in consumer requirements and the effect that new technology is having on the sector. The Smart Grid Forum exemplifies how to connect energy, consumers and technology.

The Minister asserted that New Zealand’s abundance of natural resources gives it a “renewable advantage” resulting in experience and expertise. The Minister stated that the Government has been successful in its efforts concerning the exploration and development of both petroleum and renewables and that the economic potential of renewables will be a focal point in 2015. The Minister also acknowledged the growing potential for local opportunities, and affirmed his support for smart charging of electric vehicles.

The Minister closed with the message that New Zealand must focus on thinking about how international interest can be converted into investment and economic return.

A transcript of the Minister’s speech can be found here.

In trade

Customs launches public consultation on Customs and Excise Act reform

Earlier this month, Customs released a Discussion Paper outlining its plans for reforming the Customs and Excise Act 1996. Many of its proposals would have a significant impact upon the bottom lines of exporters, importers, freight forwarders and customs brokers.

The current Act is overly prescriptive, inflexible and incoherent in parts. Customs’ aim is to create an entirely new piece of legislation that is better able to cope with technological changes, expected growth in trade and travel, new security threats, and changing business practices.

The Discussion Paper presents reform proposals that would fundamentally change the rules relating to: excise taxes; refunds, remissions and drawbacks; GST collected at the border; temporary imports; customs valuation; virtual goods; and information gathering and sharing, amongst other things. Some of the proposals are already proving quite controversial.

The Discussion Paper requests stakeholders’ views on Customs' proposals and 118 specific questions. Customs will be presenting the Discussion Paper at a series of public meetings to be held throughout the country in the coming weeks. It will also be running a series of restricted workshops and one-on-one meetings for affected parties and subject matter experts. Russell McVeagh will be presenting a workshop for clients on the reform proposals, their potential implications and the prospects for influencing them, on Tuesday 31 March in Auckland.

Public submissions are due by Friday 1 May. For further information, please contact Sarah Salmond or Shaun Connolly.


EPA consults on new rules for importers and manufacturers of hazardous substances

The Environmental Protection Authority (EPA) has requested stakeholders’ views on its proposal to require manufacturers and importers of ‘hazardous substances’ to supply certain contact information to the EPA. ‘Hazardous substances’ are products that are, or contain ingredients that are explosive, flammable, corrosive, toxic, ecotoxic (harmful to wildlife or the environment), or oxidising agents (may cause or help other substances to burn).

The EPA also proposes to make changes to the Hazardous Substances and New Organisms Act, which would make the EPA responsible for ensuring the compliance of importers and manufacturers with:

  • controls relating to labelling, safety data sheets, packaging and product content;
  • the prohibitions on persistent organic pollutants; and
  • the requirement that each hazardous substance is covered by a HSNO approval

The EPA’s consultation document is available here. Submissions are due by 28 April.


Tariff concessions

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

Applicant

Proposed tariff concession

Tariff item

Closing date for objections (2015)

Alba Consultants Limited

Impact swing door, leaf type, made of polyethylene HWPE and having stainless steel hinges, with an operating temperature range of -30°C and 60°C

3925.20

7 April

Albion Clothing Limited

Woven fabrics containing wool:
Khaki, 54% polyester, 44% wool, 2% lycra, weight 230g/m2 – 6,000m2
Black, 54% polyester, 44% wool, 2% lycra, weight 230g/m2 – 6,000m2
Blue/Grey, 54% polyester, 44% wool, 2% lycra, weight 230g/m2 – 6,000m2
Steel Blue, 54% polyester, 44% wool, 2% lycra, weight 230g/m2 – 1,000m2

55.15

7 April

Black Diamond Technologies Limited

Outdoor unit, for variable refrigerant flow (VRF) heat transfer and recovery system, operating on 3 phase 4 wire 380-400-415V power source

8415.82, 8415.90

31 March

Charles Parsons (NZ) Limited

Knitted fabric:
Ref: T1526 “TK700”; 100% polyester– 20,000m2

6005.31

7 April

Lee Arthur Holdings Limited

Woven fabrics containing wool:
Charcoal “Andretti 0001”; 60% wool, 40% polyester, weight 300g/Lm – 1,500m2
Various Colours; 45% wool, 55% polyester, weight 370–390g/Lm – 4,500m2

51.11,55.15

7 April

Mighty River Power Limited

Component items for the refurbishment of the 100MW hydroelectric power station at the Whakamaru Station, being: turbine, turbine runners, generator, generator runners an governors, for the period 1 November 2014 to 31 July 2019, excluding the following goods:
Transformers up to 10MVA,
Mechanical workshop equipment,
Construction machinery of Tariff chapters 84 and 87, and
Parts of general use

Chapter 84
Chapter 85
Chapter 90

April 7

In consultation

New

Who

What

By when (2015)

Department of Conservation

Intention to grant 35 year concession to Vodafone NZ Ltd to establish telecommunications facility at Okiwi

6 May

Intention to grant 30 year concession to Marlborough Marine Radio Association to locate VHF radio and antenna in Paradise Bay Scenic Reserve

14 May

Intention to grant 30 year concession to Sanford Ltd to accommodate staff in hut near Big Glory Bay, Stewart Island/Rakiura

14 May

Department of Internal Affairs

Changes to fees under Gambling Act 2003

13 April

Environmental Protection Authority

Application to release honeysuckle stem-boring beetle Oberea shirahatai – APP202396

16 April

Requirements for importers of hazardous substances to inform the Authority and changes to the Hazardous Substances and New Organisms Act 1996

28 April

Financial Markets Authority

Proposed matters which should be supported through the Financial Markets Authority legislative tools including class exemptions, frameworks, or methodologies and designations

2 April

Class exemptions for small to medium-sized licensed Discretionary Investment Management Services providers from particular financial reporting obligations

2 April

Class exemption for overseas bankers and insurers from certain financial reporting obligations

7 April

Ministry of Business, Innovation and Employment

Proposed increase to compensation dispute resolution schemes can award in real property insurance claims

9 April

Amendments to National Environmental Standards for Telecommunications Facilities permitting increased range of facilities permitted by the Resource Management Act 1991

17 April

Ministry for the Environment

2015 Green Ribbon Awards recognising outstanding contributions to protecting and enhancing New Zealand's environment

10 April

Proposed Amendments to National Environmental Standards for Telecommunications Facilities

17 April

Proposed mixed-model governance structure for Environment Canterbury following local government elections in October 2016

1 May

Ministry for Primary Industries

Exemptions from Emissions Trading Scheme deforestation obligations for pre-1990 forest land

7 April

Bee import products health standards

28 April

Fishing rules for Marlborough Sounds Blue Cod Fishery

15 June

Ministry of Transport

Proposed regime to manage alcohol and drug related impairment in aviation, maritime and rail sectors

24 April

New Zealand Transport Agency

Changes to Land Transport Rule: Vehicle Dimensions and Mass 2002

2 April

Guide to the management of reverse sensitivity effects of the state highway network

17 April

PHARMAC

Future funding approach for blood glucose meters and test strips

7 April

Reserve Bank

Asset class treatment of residential property investor loans and changes to capital requirements for reverse mortgages, the qualifying revolving retail exposure classification and the foundation IRB  approach

7 April

Standards New Zealand - Joint Standards

Committee IT-021 DR18128 Information and documentation, risk assessment for records processes and systems

9 April

Amendment 1 to AS/NZS 5601.1:2013 Gas installations Part 1

8 April

Respiratory Protective Devices Committee SF-010, DR16900.3: Methods of testing Part 3, DR16900.4: Methods of testing Part 4, DR16972:  Terms, definitions and graphical symbols and measurement, DR16976.1: Human factors part 1 – metabolic rates and respiratory flow rates, DR16972.2: Human factors part 2 – Anthropometrics, DR16976.3: Human factors part 3 – Physiological responses and limitations of oxygen and carbon dioxide, DR16976.4: Human Factors part 4 – Work of breathing and breathing resistance, DR16976.5: Human Factors part 5 – Thermal effects, DR16976.7: Human Factors part 7: Hearing and speech, DR16976.8: Human Factors part 8 – Ergonomic factors

23 April

Specification for Radio Disturbance and Immunity Measuring Apparatus and Methods. Amendments to AS/NZS CISPR 16.1.1:2012, AS/NZS CISPR 16.2.3:2012, AS/NZS CISPR 16.4.2:2013 and AS/NZS CISPR16.4.5:2013

27 April

Amendment to AS2341.2-1993 Methods of testing bitumen and products

28 April

Luminaries Part 2.3 for road and street lighting (IEC 60598-2-3, Ed.3.1 (2011)

20 May

Revision of AS3785.8 - 1994 Underground mining shaft equipment

7 May

Amendment 2 to As/NZS 4417.2:2012 Regulatory compliance mark for electrical and electronic equipment

15 May

Amendment 2 to AS/NZS 3111:2009 Approval and test specification – Miniature overcurrent circuit-breakers

15 May

Current

Who

What

By when (2015)

Commerce Commission

Transpower TPM operational review initial consultation paper

Ongoing

Department of Conservation

Proposal to dispose of conservation land at Waimunga

30 March

Review of wildlife, research and collection authorisations undertaken on public conservation land

Ongoing

Financial Markets Authority

Business Growth Agenda

Ongoing

Inland Revenue Department

Draft operational statement: GST and the costs of sale associated with mortgagee sales

27 March

 Income Tax Insurance Term (employee): income tax treatment of a term life insurance policy taken out by an employee for their own benefit where the premiums are paid by the employer

27 March

Income Tax Insurance Term (employer): income tax treatment of a term life insurance policy taken out by an employer for the benefit of the employee (or the employees partner or child)

27 March

Draft Interpretation Statement updating IS 10/08 “Retirement villages – GST treatment” to reflect legislative changes made to the Goods and Service Tax Act 1985

7 April

Ministry of Business, Innovation and Employment

Submissions on property regulations and local rules that are irrelevant or unnecessary

Ongoing

Ministry for Primary Industries

Proposals for regulations under the Food Act 2014

31 March

Parliamentary Counsel Office

Proposal to re-enact the Interpretation Act 1999, with updating modifications, in the Legislation Act 2012

16 April

Standards New Zealand - Joint Standards

 

Methods for sampling and analysis of ambient air Method 9.3: Determination of suspended particulate matter – Total suspended particulate matter (TSP) – High volume sampler gravimetric method (Revision of AS/NZS 3580.9.3:2003)

27 March

Plastic monobloc chairs – Determination of strength and durability, stability, UV and weathering, and ignitability (Revision of AS/NZS 3813:1998)

27 March

Analogue speech (angle modulated) equipment operating in land mobile and fixed services bands in the frequency range 29.7 MHz to 1 GHz (Revision of AS/NZS 4295:2004)

27 March

Coaxial cable and optical fibre systems for the RF distribution of digital television, radio and in-house analog television signals in single and multiple dwelling installations (Revision of AS/NZS 1367:2007)

3 April

Freight containers:
Part 2: Terminology (ISO 830:1999, MOD) (Revision of AS/NZS 3711.2:1993);
Part 3: Corner fittings (ISO 1161:1984, MOD) (Revision of AS/NZS 3711.3:1993)

13 April

Approval and test specification – Plugs and socketoutlets for stationary appliances (Revision of AS/NZS 3131:2001)

15 April

Amendment 1 to AS/NZS 3012:2010 Electrical installations – Construction and demolition sites

24 April


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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