Watching Brief - May 2022 - Russell McVeagh

Matter of Opinion

A River Runs Through It – Shifting Ground in Judicial Review

In the context of seismic shifts in judicial review in overseas countries – notably the extraordinary developments in the US Supreme Court re-visiting Roe v Wade, and the attack on the scope of judicial review by the Boris Johnson Government in the UK – it may seem parochial to focus on judicial review at home.

However, the High Court has been particularly busy this past year, sitting over a large number of politically charged, high profile judicial review proceedings. Many of these claims are brought with convincing legal grounds to challenge public decision-making processes, although some seem more speculative in their legal foundations – however, this does not necessarily diminish the value of bringing such proceedings. There has been a growing trend in judicial review of claims that, whatever their strict legal merits in and of themselves, are primarily launched in the context of a wider strategy. To many, this may seem at odds with the principled nature of judicial review. After all, at its core, judicial review holds an important constitutional purpose: to hold institutions and individuals with power over the public, accountable. They must exercise their power in accordance with the law. However, it is worth considering whether this expanded utilisation of judicial review of public decisions in fact gives greater and more nuanced meaning to Executive accountability…

The Three Waters Reform has become controversial and contentious in some quarters, although almost all acknowledge the vital need for reform of the status quo. The concerns held by some critics of the reform were brought to the judiciary's attention with the December 2021 announcement that the newly established Water Users' Group was launching a judicial review, alleging errors of law in the Minister of Local Government Hon Nanaia Mahuta's Cabinet papers on the Three Waters scheme. While the grounds argued in the statement of claim seem novel and ambitious (the matter is yet to be the subject of judicial determination), the action has generated significant publicity and received positive attention within the core groups of people who are opposed to Three Waters. Independent of the ultimate success of the claim or otherwise, the Water Users Group will likely have achieved a lot of what they've set out to do by simply bringing judicial review proceedings - that is, to have another forum to ventilate the concerns that many New Zealanders hold regarding the Three Waters reforms. One risk with this kind of approach, however, is if you misjudge how the general public will perceive such a claim (let alone the Courts), there could be significant backlash to your cause. Further, losing a case that the court determines to be unmeritorious can further strengthen the Government's hand, and encourage further action. We will be watching closely to see how this plays out over the coming months.

While the recently decided judicial review launched by Grounded Kiwis employed more orthodox grounds for review than the Water User's Groups claim, it too had a significant PR and political strategy flavour. Grounded Kiwis was established as a network and advocacy group of New Zealanders who were "grounded" during the COVID-19 pandemic due to New Zealand closing its borders, and restricting access to enter by putting in place the MIQ system. In October of last year, Grounded Kiwis filed for judicial review against the Minister of Health, Minister of COVID-19 Response and Chief Executive of MBIE on the grounds they acted unlawfully and unreasonably in the design and operation of the MIQ system. Public support for MIQ at this time was divided, and there was a real risk that challenging a system that many thought had kept New Zealand safe would be perceived unfavourably. However, for Grounded Kiwis this risk paid off – they were successful in their claim in some key respects, with the judgment released earlier this month agreeing that aspects of the way the MIQ system was designed and managed were in breach of rights protected under the New Zealand Bill of Rights Act. Although Grounded Kiwis did have a meritorious claim in and of itself, there was the added benefit that launching the claim generated a good deal of media coverage and publicity, which in turn created more public pressure on the Government (albeit the result has come after the system has been largely removed). This case serves as a good example of how the goals of bringing a judicial review can be multi-faceted: to bring a successful legal claim, but also, to also generate public interest and political profile which may in turn lead to a policy and/or legislative pivot.

Traditionally, many have taken the view that the filing of legal proceedings for ancillary political purposes is antagonistic, or even an abuse of our legal or public accountability system for purely political agendas. It is true that in some cases, the motivations for bringing a judicial review may be driven more by political motivations, as opposed to concerns of justice or good public policy principles. However, it is clear that transparency and accountability come in many forms. Whatever the motivations are behind the challenging of a public decision, it does not impact the role of the court: that is, to fairly and properly assess the application of the Executive's powers in accordance with the law. In the political sphere, it is understandable for one to characterise legal accountability and political strategy as two very different actions, existing for distinct and separate purposes. However, the success of any law reform strategy is contingent on, and driven by, holding decision makers accountable. Thus, utilising the "tool" of judicial review to achieve political ends (through the law) need not be viewed as an erosion of the purposes of judicial review, or an abuse of judicial function and legal principle, because ultimately, if those in power are being held accountable for the exercise of their powers, then the purpose of judicial review is being vindicated.

It should be kept in mind, however, issues of equity in accessing judicial intervention. Access (or lack thereof) to civil justice has been a key area of focus for the New Zealand Law Society (among other interest groups and the wider public), particularly over the past year, with the Rules Committee undertaking a major review of the area. The costs of bringing a civil matter to court are significant, with filing and ongoing legal fees making judicial review an unrealistic option for many aggrieved parties. With the expanded utilisation of judicial review of public decisions opening up additional avenues for parties to ventilate concerns, it ought to be remembered that it is only those who are fortunate enough to have financial backing who are able to pursue this avenue.

So, even in New Zealand, the contours and boundaries of judicial review are at the heart of our constitution and are a critical component of our democracy and political process. The river of judicial review keeps flowing through our system of Government, but it continues to shift course as it navigates the issues of the day. Government decisions-makers and affected private sector individuals and entities need to monitor this shift continuously.

In the News

Health sector reform – locality network pilot

The Government has announced the roll-out of a new "locality approach" as part of the wider health sector reform; establishing a collective of locality networks across the country to advise Health New Zealand and the Māori Health Authority on the health services needs identified by their communities. Locality networks are the new regional basis for organising health services for communities.

These networks aim to give iwi and the local community the opportunity to shape their local healthcare system to better serve the people that live and work there. The Minister of Health, Hon Andrew Little, stated that these networks will give New Zealanders a "more direct voice to determine how health services are delivered because locality networks are required to consult, engage and capture the input of the communities they represent including iwi, local authorities and social sector agencies rather than relying on a small number of elected reps under the DHBs."

The area of each network will be determined by factors such as priority population groups, iwi boundaries and local government boundaries. A locality commissioner will be assigned to work with the community and providers in the area to discuss their priorities for local care.

The first nine areas to roll out the locality approach include Hauraki, Whanganui and Porirua. Subject to legislation being passed through Parliament, these locality networks will be established and operational from 1 July 2022.

It is anticipated that there will be between 60 and 80 locality networks operational by July 2024.

Establishment of a new public media entity

In March 2022, Minister for Broadcasting and Media, Hon Kris Faafoi, announced the establishment of a new public media entity that will combine both existing public media entities; Radio New Zealand (RNZ) and Television New Zealand (TVNZ).

This announcement follows the creation of a group of independent experts in March 2021, the Strong Public Media Business Case Governance Group (Group), to oversee the development of a business case to consider the viability of a new public media entity. It was the Group's recommendation to create a modern public media entity to address international challenges to traditional media, including changes in technology and competition for audiences and revenue. The Group also stressed the importance of protecting and future proofing the trust and strength that the public media has built up over decades providing reliable news to New Zealanders.

The new entity will be an Autonomous Crown Entity with complete editorial independence and a board of between six and nine members. Government funding decisions will be made as part of Budget processes, but the entity will receive commercial and Crown funding for operations.

It is expected that the entity will:

provide quality public media content to all New Zealanders, including groups who are currently under-served or under-represented;
use a range of platforms, including current radio and TV, to reach audiences when, where and how audiences choose;
operate under a charter, set out in legislation, and provide trustworthy news as a core service;
deliver on the Crown's Te Tiriti obligations and provide Māori stories and perspectives;
carry advertising, while ensuring services which are currently commercial-free will remain so; and
collaborate with and support the wider New Zealand media sector where appropriate.

An Establishment Board has recently been appointed to oversee the detailed design of the entity, with the aim of having the entity operational by 1 July 2023. The public will have an opportunity to provide feedback, including on the entity's charter, through the select committee process when legislation is considered later this year.

Government seeks to fast-track organic medicinal cannabis industry

The Government has agreed to provide funding to New Zealand's largest medicinal cannabis grower, Puro, with the aim of fast-tracking New Zealand's organic medicinal cannabis industry. The Marlborough-based grower will receive $13 million towards a $32.2 million project as part of the Ministry for Primary Industries' Sustainable Food and Fibre Futures, a co-investment programme designed to support innovative initiatives across the food and fibres sectors. Puro intends to use the funding to develop unique plant varieties, research post-harvest efficiencies, and produce an organic production handbook that will be made available for use by the wider industry, including potential new market entrants. During the project's five-year lifespan, it is anticipated that up to 200 jobs will be created throughout Marlborough and Kaikoura.

When announcing the partnership, the Minister of Agriculture, Hon Damien O'Connor, stated that the project was expected to create export opportunities in a global growth market and increase access to domestically grown pain medication for New Zealand patients. He expressed that one of the main factors driving the investment was to diversify the agriculture industry to combat climate change, in addition to securing up to $232 million in potential economic benefits by 2032.

Three Waters Reform Programme update

Under the leadership of Hon Nanaia Mahuta the Government has continued to progress its proposed full-scale regulatory and structural reform of water service delivery across Aotearoa New Zealand.

As of 2 April 2022, local councils can now apply for the first tranche of $500 million of funding from the Three Waters Reform Package. The funding will be available from 1 July 2022 to promote local council investment in local community water infrastructure without the need for difficult financial decisions or use of ratepayer money. Community projects that could benefit from the funding include local parks or gardens, swimming pools, libraries, community centres, or investment in public transport and infrastructure to protect against sea level rise or extreme weather events. Applications close on 30 September 2022, and the next tranche of funding is not available until 1 July 2024 (when the four water services entities will be established).

Further, Hon Nanaia Mahuta announced on 29 April 2022 that the Government had accepted the vast majority of the Working Group's recommendations on representation, governance and accountability (the Working Group's full report can be found here). The Government's response to each of the 47 recommendations can be found here.

Of note, in line with the recommendations, the Government will:

provide for a public shareholding structure that makes community ownership clear, with shares allocated to councils reflective of the size of their communities (one share per 50,000 people);
aim to further strengthen and clarify the role of the Regional Representative Group; with joint oversight from local councils and mana whenua hoping to ensure community voice and provide tighter accountability from each water services entity board;
maintain that board members are to be appointed based on skills and competency;
attempt to strengthen connections to smaller communities including through local sub-committees feeding into the Regional Representative Group, to try to ensure communities’ voices are considered as part of investment prioritisation; and
aim to recognise and embrace Te Mana o te Wai – the health and wellbeing of our waterways and waterbodies – as a korowai, or principle, that applies across the water services framework.

Government support in Air New Zealand capital raise

The New Zealand Government has participated in Air New Zealand's recent capital raise to retain its position as a majority shareholder of the national carrier. On 30 March 2022, Air New Zealand announced its intention to raise NZ$2.2 billion "recapitalisation package" made up of a $1.2 billion pro rata rights offer, a $600 million issuance of redeemable shares to the Government and a $400 million loan from the Government to replace the existing loan facility. The capital raise is intended to accelerate the recovery of Air New Zealand and the New Zealand economy from the effects of the COVID-19 pandemic. The rights offer closed on 2 May 2022, with the Crown taking up its rights to purchase the number of new shares necessary to retain a 51 percent holding, which is worth up to $602 million after previously pre-committing to participate in the offer. A portion of the capital raised by Air New Zealand will be used to repay the $850 million loan that Air New Zealand received from the Government during the COVID-19 pandemic.

The Minister of Finance, Hon Grant Robertson, stated that, by maintaining its majority shareholding, the Government is "continuing to invest in Air New Zealand and provide stability and certainty as the airline positions itself for recovery and resumes services to key international tourism markets and develops new destinations like New York". Minister Robertson further stated that the airline has a critical role in New Zealand's economy and society and this support, in addition to the loan facility and other Government initiatives which have been introduced over the past two years, is "important as we need a national airline to support economic development and provide access to international markets, and to enable the return to international tourism".

Electricity Authority's new transmission pricing methodology

On 12 April 2022, the Electricity Authority announced that it will adopt a new Transmission Pricing Methodology (TPM) as a schedule to the Electricity Industry Participation Code 2010 (Code).

This announcement follows a significant structural reform and consultation process that commenced in 2009, with the most recent consultation on the proposed new TPM occurring in late 2021.

The TPM, as indicated in the decision paper, aims to better position New Zealand for the transition to a low-emissions economy by ensuring the best use of existing and future infrastructure and electrification at lower cost. In particular:

the previous pricing methodology is replaced on the basis that it is considered to be inefficient and no longer fit for purpose;
a benefit-based approach is emphasised, where those who benefit from transmission investments will pay for them through fixed-like charges;
residual charges will cover unallocated costs;
wholesale market electricity prices will work alongside the new charges;
the methodology includes connection charges, a discount policy and a transitional cap; and
allocation of costs of transmission services will be rebalanced, which will result in some transmission customers paying more than they do under the current methodology.

The Electricity Authority is seeking feedback on a set of proposed amendments to the Code, which aim to support the implementation of the new TPM. Submissions are due by 18 May 2022. See the consultation paper here for more information.

The new TPM in electricity prices will be implemented by April 2023. Until then, the Electricity Authority will progress the necessary amendments and publish guidance on the pass-through of transmission prices by distributors to their customers.

New Zealand releases emergency oil stocks

In April 2022, the New Zealand Government released 483,000 barrels of oil from its emergency oil stocks as part of its obligations as an International Energy Agency (IEA) member country. The thirty one members of the IEA agreed to an emergency release of 120 million barrels of oil to help offset the restrictions on Russian oil exports. This release aligns with New Zealand's Oil Emergency Response Strategy and follows on from the release of 369,000 barrels in March 2022, as part of the initial collective action to release 62.7 million barrels held by IEA members.

The release of emergency oil stocks forms part of a global action by IEA member countries to stabilise the world energy markets following Russia's invasion of Ukraine. New Zealand released slightly more than its allocated share in both the March 2022 and April 2022 releases to assist with the stabilisation of world energy markets. The United States intends to release 180 million barrels of oil over the next six months.

In Trade

Significant steps in New Zealand's bilateral free trade agreements

Over the last few months, the Ministry of Foreign Affairs and Trade has progressed bilateral free trade agreements with two of New Zealand's key trading partners, which has culminated in:

New Zealand signing a Free Trade Agreement with the United Kingdom (UK FTA) on 28 February 2022 to enable increased access to New Zealand's seventh largest export market; and
the Upgrade to the New Zealand-China Free Trade Agreement (Upgrade), which came into force on 7 April 2022.

New Zealand signs free trade agreement with the United Kingdom

Preparations for the UK FTA first began in 2017, with the two countries reaching an agreement in principle in October 2021. We outlined the key aspects of the UK FTA in a previous edition of Watching Brief here.

The New Zealand Government has described the deal as a "historic" and "gold-standard free trade agreement" that will see New Zealand exports to the UK increase by over 50%. This expected increase will be driven primarily by the removal of duties on virtually all New Zealand's current trade with the UK, and the introduction of significant duty-free quotas for key products such as meat, butter and cheese. The implementation of the UK FTA will mean that 99.5% of New Zealand's current exports will enter the UK duty-free immediately following the UK FTA coming into force. This, along with more efficient customs procedures, will cut costs for New Zealand exporters, enabling them to compete more effectively in UK markets.
Other key aspects of the UK FTA include:

the incorporation of a specific article addressing climate change action, with provisions made to eliminate environmentally harmful subsidies in relation to fossil fuels and fishing; and
a chapter dedicated to Māori trade and economic co-operation that recognises the unique context and special relationship between Māori and the UK, with provisions made to help advance Māori economic aspirations and well-being.

As a result of the UK FTA, New Zealand GDP is expected to increase by up to $1 billion. In addition to accelerating New Zealand's COVID-19 economic recovery, the Government views the UK FTA as a springboard for new engagement and closer ties with the UK, helping New Zealand to reconnect and rebuild its connection with the wider world.

The Government expects that the UK FTA will enter into force by the end of 2022, following ratification of the agreement by both parties' respective parliaments.

Upgrade to New Zealand's Free Trade Agreement with China comes into effect

Since signing the original Free Trade Agreement (FTA) with China in 2008, two-way trade between the countries has grown to exceed $32 billion annually, making China New Zealand's largest trading partner. In 2017, the two countries began negotiations to modernise the agreement, with the aim of reducing barriers impacting exports and boosting trade. These negotiations eventually concluded in January 2021 when the Upgrade was signed. Further information on the Upgrade can be found in our previous Watching Brief article here.

Key aspects of the Upgrade include:

the insertion of four new chapters into the existing FTA. These include chapters that promote e-commerce, co-operation in the enforcement of competition law, transparency in government procurement processes, and environmental protection;
new market access in a number of service sectors, including environmental, airport operation, specialty air, ground handling and audio-visual services, as well as an expansion of market access in real estate, translation, education and advertising services;
streamlined customs and operational procedures, making it easier to export goods to China. This includes faster customs clearance times for perishable goods such as seafood, as well as more simplified labelling and certification requirements; and
the elimination of a number of export tariffs. Over the next ten years, tariffs will be removed from an additional 12 wood and paper products, ensuring that 99% of wood and paper exports to China will be tariff-free. This will remove a further $1.5 million in tariffs in the forestry sector alone.

While the Upgrade did not make any changes to access in the dairy industry specifically, as of 1 January 2022, reduced dairy tariffs agreed under the 2008 FTA came into effect, saving exporters $200, with further tariffs to be removed in 2024.

As a result of these amendments to the FTA, the Government estimates that the Upgrade is expected to add up to $1 billion to New Zealand's GDP.

Autonomous Russia sanctions regime update

Following the enaction of the Russia Sanctions Act 2022 (Act), a historically significant piece of legislation for Aotearoa New Zealand, tranches of sanctions have been implemented via regulations.

The Act provides a broad legal framework, enabling the imposition of economic sanctions targeting specific people, companies, assets and services associated with Russia’s invasion of Ukraine. Sanctions apply to individuals, entities, assets and services designated under the Act and include travel bans, bans on aircraft or ships entering New Zealand, and prohibitions on dealing with assets and services. These designations can be found in Schedule 2 of the Russia Sanctions Regulations 2022. The sanctions that apply to each individual or entity are listed in that Schedule.

The first tranche of sanctions came into effect on 18 March 2022, and designated an additional 364 political and military individuals to New Zealand's travel ban list, and placed sanctions on the President of Russia Vladimir Putin and the 12 members of his Security Council, one bank and 18 other entities (more information on this first tranche can be found here). The following tranches of sanctions have since been implemented:

Sanctions were imposed on eighteen financial entities, including Russia’s central bank, sovereign wealth fund and the largest financial institutions in the country. According to the Minister of Foreign Affairs, Hon Nanaia Mahuta, these major institutions make up approximately 80% of Russia’s total banking assets. The eighteen financial entities are three core government financial institutions, including banks and a key investment fund, eight of the largest banks, and seven other banks of significance because of links to oligarchs, Russia’s defence sector and annexation of Crimea.
A 35 percent tariff was applied on all imports of goods of Russian origin arriving in New Zealand. This applies to all goods of Russian origin regardless of country of export. The existing export prohibitions were also extended to industrial products closely connected to strategic Russian industries.
Further sanctions have been imposed on the 170 members of the upper house of Russia’s Parliament, known as the Federation Council, as well as six companies and organisations in the defence sector which have contributed to Russia's invasion of Ukraine. This round of sanctions also extended the full suite of its prohibitions to over 400 people who are captured by previously implemented travel bans.

In the House

What’s coming up in the House

Parliament will resume sitting on 10 May 2022.

The debate on the third reading of the Protected Disclosures (Protection of Whistleblowers) Bill will resume.

Other legislation to be considered include the second reading of the following Bills:

Financial Markets (Conduct of Institutions) Amendment Bill;
New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill;
Plant Variety Rights Bill; and
Hazardous Substances and New Organisms (Hazardous Substances Assessments) Amendment Bill.

Progress of Legislation

Bills introduced

Fisheries Amendment Bill

Type of bill: Government
Member in charge: David Parker

This Bill will amend the Fisheries Act 1996. It will require consequential amendments to commercial and recreational fishing regulations. It proposes a number of legislative changes which include:

introducing a graduated offences and penalty regime;
amending the rules of commercial fishers that set out what fish must be brought back to port and what fish may, or must, be returned to sea;
introducing a new defence to lawfully return fish to the sea to save protected species;
streamlining the processes for adjusting commercial and recreational catch limits;
enabling an approval process, established through regulations, that provide for alternative avenues for fishers to dispose of unwanted catch once landed; and
technical amendments to assist with the roll out of cameras on commercial fishing vessels.

Improving Arrangements for Surrogacy Bill

Type of bill: Member's
Member in charge: Tāmati Coffey

This Bill will amend five Acts and two sets of Regulations to simplify surrogacy arrangements and ensure the completeness of birth certificate information. It will also provide a mechanism for enforcing surrogacy arrangements. Currently New Zealand law does not afford any automatic rights to the intending parents of a child born via surrogacy, and at the time of birth the child's legal parents are the surrogate mother and partner. This Bill will affirm the intending parents' automatic legal status at the point that the custody of the child is transferred. It will also enforce the legal obligations of intending parents of they refuse to take custody by making them liable for child support, even if they do not have custody of the child.

Bills awaiting first reading

Bills defeated

Bills before select committee

Submissions open

BILL	SELECT COMMITTEE	CLOSING DATE FOR SUBMISSIONS
Te Rohe o Rongokako Joint Redress Bill	Māori Affairs Comittee	12 May 2022
Natural Hazards Insurance Bill	Finance and Expenditure Committee	13 May 2022
Fair Pay Agreements Bill	Education and Workforce Committee	19 May 2022

Submissions closed

BILL	SELECT COMMITTEE	REPORT DUE
Remuneration Authority Legislation Bill	Justice Committee	26 April 2022
Data and Statistics Bill	Governance and Administration Committee	09 May 2022
Three Strikes Legislation Repeal Bill	Justice Committee	17 May 2022
Māori Purposes Bill	Māori Affairs Committee	25 May 2022
Civil Aviation Bill	Transport and Infrastructure Committee	02 June 2022
Canterbury Regional Council (Ngāi Tahu Representation) Bill	Māori Affairs Committee	08 June 2022
Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill	Education and Workforce Committee	14 June 2022
Oranga Tamariki Amendment Bill	Social Services and Community Committee	14 June 2022
Security Information in Proceedings Legislation Bill	Justice Committee	14 June 2022
Maniapoto Claims Settlement Bill	Māori Affairs Committee	15 June 2022
Oversight of Oranga Tamariki System and Children and Young People's Commission Bill	Social Services and Community Committee	13 June 2022
Palmerston North Reserves Empowering Amendment Bill	Environment Committee	11 July 2022
Crimes (Child Exploitation Offences) Amendment Bill	Justice Committee	20 July 2022
Protection of Journalists' Sources Bill	Justice Committee	20 July 2022
Firearms Prohibition Orders Legislation Bill	Justice Committee	09 August 2022
Plain Language Bill	Governance and Administration Committee	15 August 2022
Statutes Amendment Bill	Governance and Administration Committee	08 September 2022
Rotorua District Council (Representation Arrangements) Bill	Māori Affairs Comittee	06 Ocotber 2022

Bills awaiting second reading

Committee of the whole House

Bills awaiting third reading

Bills awaiting Royal Assent

Acts assented

Commerce Amendment Act

This Act amends the Commerce Act 1986 with the intention of strengthening the prohibition against misuse of market power (section 36), alongside other amendments to the functioning of the Act. The Act primarily reforms the anti-monopolisation provision to clarify that conduct by persons with substantial market power that has the purpose, effect or likely effect of substantially lessening competition in markets is prohibited, aligning section 36 to its Australian counterpart. It also amends section 36A to align with the new section 36, so that the prohibitions for New Zealand firms apply to Australian or trans-Tasman firms as well. This Act would also permit the Commerce Commission to grant authorisation for conduct in breach of section 36 or section 36A in the public's interest.

Contraception, Sterilisation and Abortion (Safe Areas) Amendment Act

This Act amends the Contraception, Sterilisation and Abortion Act to prohibit certain behaviour in designated safe areas around premises that provide abortion services. Prohibited behaviour is defined as:

(a)       obstructing a person in a safe area from approaching, entering or leaving a premise that provides abortion services;
(b)       making a visual recording of another person in a safe area in a manner that is likely to cause emotional distress to a person accessing, providing or assisting with providing abortion services; and
(c)       doing any of the following in a safe area:
           (i)         advise or persuade a person to refrain from accessing or providing abortion services;
           (ii)        inform a person about matters related to the provision of abortion services (other than during the course of providing those services);
           (iii)       engage in a protest about matters relating to the provision of abortion services.

The safe area is to be prescribed by regulations on the recommendation of the Minister of Health. The regulations will be reviewed every five years.

Conversion Practice Prohibition Legislation Act

This omnibus Act prohibits conversion practices that seek to change or suppress a person's sexual orientation, gender identity, or gender expression. The Government's objectives in prohibiting conversion practices include to affirm the dignity of all people and that no sexual orientation or gender identity is broken and in need of fixing, prevent the harm conversion practices cause in New Zealand and provide an avenue for redress and to uphold the human rights of all New Zealanders to live free from discrimination and harm.

This Act defines conversion practice and creates new criminal offences where there is a heightened risk of harm or where serious harm is caused. In addition, the Act utilises the Human Rights Commission's existing functions and complaints system to provide a redress scheme for conversion practices.

COVID-19 Response (Courts Safety) Legislation Act

This is an omnibus Act that amends the Courts Security Act 1999, the Criminal Procedure Act 2011, and the Juries Act 1981 to assist courts and tribunals to operate safely and effectively during the COVID-19 pandemic. The following amendments were made:

Courts Security Act: to allow the judiciary and Ministry of Justice to impose requirements relating to COVID-19 for people when entering or remaining in any court and some tribunals.
Criminal Procedure Act: clarifies that hearing proceedings remotely or restricting entry for health and safety reasons related to COVID-19, is not inconsistent with the right of the public and media to be present at criminal hearings.
Juries Act: allows the judiciary to set additional requirements for selecting and manging juries, including on health and safety grounds in the COVID-19 context.

Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Act

This Act amends the Harmful Digital Communications Act 2015 and introduces a new offence of knowingly posting a digital communication that is an intimate visual recording, without the consent of the person who is the subject of that recording, or being reckless as to whether the victim consented, and without reasonable excuse. The key effect of the Act is that the intent to cause harm to the subject is implied simply by posting the recording.

Incorporated Societies Act

This Act makes a number of key changes to the previous governance framework relating to incorporated societies. Namely it:

codifies duties of incorporated society officers, which already existed in case law, including officer duties to act in good faith, exercise their powers for proper purposes, exercise care and diligence, not agree to activities of the society which are likely to create a substantial risk of serious loss to creditors, and other relevant duties;
lists matters that must be included in a society's constitution (including internal dispute resolution procedures);
prescribes External Reporting Board accounting standards for larger societies' financial reporting; and
sets out other dispute resolution and judicial review mechanisms available to members of societies and creates sector-specific offences.

Many of the provisions of the Act do not take effect immediately. For example, for groups considering creating new societies:

until around Q3 2023, they must register under the 1908 version of the Act; and
after that time, they must register under the 2022 Act.

In addition, the situation for any society registered under the 1908 Act (including those that register before the end of Q3 2023) is as follows:

until Q3 2023, they remain subject to the rules in the 1908 Act;
at some point in the period Q4 2023 to Q1 2026 (a period of about 2½ years), they must re-register with the Companies Office or they will cease to exist; and
as soon they re-register, they become subject to the rules in the 2022 Act. This means each society will become subject to the new rules at the time of its own choosing.

Land Transport (Clean Vehicles) Amendment Act

This Act aims to rapidly reduce carbon dioxide emissions from light vehicles imported into New Zealand by increasing the supply and variety of, and demand for, zero and low emissions vehicles, and informing New Zealanders about vehicle emissions levels and rebates receivable or charges payable in relation to light vehicles. These goals are implemented through the introduction of a clean vehicle standard, and a separate clean vehicle discount initiative. It also creates vehicle labelling requirements, so that consumers will receive information about vehicle emissions levels, and the rebates receivable or charges payable for different vehicles.

Land Transport (Drug Driving) Amendment Act

This Act amends the Land Transport Act 1998 and creates a roadside oral fluid testing regime to test drivers for recent drug use. The Act allows police officers to randomly stop drivers of motor vehicles and administer an oral fluid test. The devices will have detection limits for the drugs tested for, beneath which drug use would not be detected. A driver who fails two consecutive oral fluid tests will be liable for an infringement offence. The Act in some circumstances will also require a driver to undertake an evidential blood test, or a person may choose to do so, and depending on the level of drug detected in the blood test may be liable for an infringement penalty or a criminal penalty. The type of penalty would depend on the level of drug(s) detected and whether multiple drugs or drugs in combination with alcohol were detected. The oral fluid testing regime that the Act has created is aligned in some respects to the current breath test regime for alcohol detection, including the fees for infringement and criminal penalties being set to the same amount as drink driving offences.

Maori Commercial Aquaculture Claims Settlement Amendment Act

This Act amends the Māori Commercial Aquaculture Claims Settlement Act 2004 with the aim of better enabling the allocation and transfer of aquaculture settlement assets to iwi. The Act will allow the trustee, Te Ohu Kai Moana Trustee Limited, the limited discretionary power to allocate and transfer settlement assets to iwi when satisfied that the dispute resolution process provided in the Settlement Act has been unable to resolve the issue or could not be issued in the situation and it is clear that all iwi in the region are unable to reach agreement about how the assets should be allocated among them; or it is satisfied that it is unable to make a determination on aquaculture settlement allocation entitlements because it has not been able to recognise iwi aquaculture organisations for one or more iwi.

Ngāti Maru (Taranaki) Claims Settlement Act

The Act gives effect to certain provisions of the deed of settlement (the Deed), which was signed on 27 February 2021. The Act:

records the acknowledgements and apology given by the Crown to Ngāti Maru in the Deed; and
gives effect to the Deed, in which the Crown and Ngāti Maru agree to a final settlement of all historical Treaty of Waitnagi claims of Ngāti Maru. The settlement package that is set out in the Deed includes:
- an historical account;
- Crown acknowledgements and apology;
- $30 million in financial and commercial redress; and
- the right to buy 36 properties which include three situated within the Whanganui River catchment.

The Ngāti Maru's rohe (area) is the inland Taranki region and the settlement is the last of the historic claims by the region's eight iwi.

Ngāti Rangitihi Claims Settlement Act

This Act gives effect to some elements of the Ngāti Rangitihi deed of settlement which was signed by Ngāti Rangitihi and the Crown on 5 December 2020. This Act records the acknowledgements and apology made to Ngāti Rangitihi by the Crown when the deed was signed and gives effect to the elements in the deed that require legislation. This Act includes a summary of the historical background to the claims and provides for ackolwedgments of, and an apology for, the Crown's acts and omissions that caused prejudice against Ngāti Rangitihi.

Paige Harris Birth Registration Act

This Act requires the Registrar-General to enter the details of Katherine Elizabeth Harris as mother on the registration of the birth of Paige Katherine Elizabeth Harris, as well as the details of Kyle Jason Harris.

Paige Katherine Elizabeth Harris was born on 25 March 2020. Her parents were Kyle Jason Harris and Katherine Elizabeth Harris. Paige Harris was carried by a surrogate, Renee Ellen Johnson based on the medical harm to Katherine Harris should she carry a child. Katherine Harris died before Paige Harris was born. Following the birth of Paige Harris, an adoption order was granted naming Kyle Harris as the father with no mother named. Because Katherine Harris died before the birth, there is no means other than by a Private Bill, by which Katherine Harris' name can be added to Paige Harris' birth certificate.

Road User Charges (Temporary RUC Reduction Scheme) Amendment Act

This Act temporarily reduces the road user charges (RUC) by 36%, which is equivalent to the recently introduced 25 cents per litre reduction in petrol excise duty, for a period of three months. This Act was introduced to ensure that owners of diesel vehicles are treated similarly to the owners of petrol vehicles.

Russia Sanctions Act

This Act enables New Zealand to impose and enforce sanctions in response to the military action by Russia in Ukraine that commenced on 24 February 2022 (and by countries or persons who may be assisting Russia). The Act empowers regulations that may apply to persons entering or remaining in New Zealand and dealing with assets or services. These regulations can be made on the recommendation of the Minister of Foreign Affairs if they are satisfied that the regulations are appropriate. The threshold being that the Minister considers it to demonstrate New Zealand's condemnation of the threat to either or both:

being designed to exert pressure on Russia (or a country who may be assisting Russia); or
because it complements or reinforces sanctions by other countries.

The Minister must also be satisfied that the United Nations Security Council is unlikely to act in response to the threat under Chapter VII of the Charter of United Nations or has acted (or is likely to act) under the Chapter but the action is insufficient. The regulations may be general or specific. The regulations can be general or specific and must have a fixed term that cannot be longer than three years. The sanctions can be enforced both criminally and civilly.

Sunscreen (Product Safety Standard) Act

This Act requires the Minister of Commerce and Consumer Affairs to recommend the setting of mandatory regulations prescribing a safety standard for sunscreen products. These regulations are to be set under section 29 of the Free Trade Agreement 1986, which empowers the making of product safety standards in relation to particular goods. Previous to the passing of this Act, New Zealand's standards for the testing and labelling of sunscreen did not require mandatory compliance.

Taxation (Annual Rates for 2021-22, GST and Remedial Matters) Act

This omnibus Act contains a series of taxation amendments, with over one hundred policy and remedial amendments, but they broadly fall into three categories. The first category sets the annual rates of income tax for the 2021/2022 year. The second category contains changes to the current settings within a broad-base, low rate framework. The third category relates to changes to the settings of tax administration, GST, Kiwisaver and social policy rules administered by Inland Revenue. There are also some notable changes that this Act has put in place:

Cryptocurrency is to be excluded from GST, with a retroactive effect to 1 January 2009.
Interest deductions in relation to residential investment properties will be disallowed.
The 5 year new build bright line test is also amended to include where a person owns new build land, and then build another dwelling on their property, that "new" new build would not be considered a new build because the land had already qualified for the new build exemption, therefore it will be subject to a 10 year bright line period, rather than a 5 year period for new.

Te Pire mō te Hararei Tūmatanui o te Kāhui o Matariki/Te Kāhui o Matariki Public Holiday Act

This Act establishes an annual public holiday to acknowledge Mataraiki and sets out the dates for the Matariki public holiday from 2022 to 2052.

Watching Brief - May 2022