Publications

Watching Brief – August 2015

Home Insights Watching Brief – August 2015

Matter of opinion

Trans Pacific Partnership: is it time for a more open approach to trade agreements?

While TPP negotiations remain ongoing, the process appears to be in its final stages. US Congress recently approved a fast track process, meaning a conclusion before the end of year is now more likely. We have seen a corresponding upturn in political positioning and public disquiet, where the Government’s approach, for now, is to dismiss concerns and defer substantive engagement until the text is available.

Our participation in the TPP is arguably a necessary reality in a global market, with the potential to bring considerable benefits for New Zealand. But there is a question whether the Government is underestimating the strength of opposition (including on a global level) and the importance of “bringing New Zealand along”. Indeed, a number of other countries have chosen a more open approach during the negotiation stage of the TPP (and the TTIP, being the US / EU equivalent) to better ensure public buy-in.

Secrecy during trade negotiations is nothing new: it is consistent with the government approach taken for all previous trade agreements, including under Labour governments. Further, once agreement is reached, New Zealand will have a say on whether it enters the TPP. Under the Cabinet Manual, the TPP must be approved by Parliament, with an opportunity for the public to make submissions to a Select Committee. Again, deferring engagement to this phase is nothing new. However, there is a question whether this traditional approach is still fit for purpose in the context of the TPP (and whether it comes without political risk). 

The main public reservations expressed to date are around constraints on government regulatory power (the investor-state dispute settlement (ISDS) clauses in particular), and intellectual property. The Government’s approach for now is to dismiss, rather than engage with, these concerns. (Recently opponents were referred to as “fools” (Tim Groser) and “misinformed” (John Key). The Ministry of Foreign Affairs and Trade has been consulting with stakeholders, but this process has had low visibility to the public. While the Government strategy is likely a deliberate one, and no doubt issues will be addressed head-on once the TPP text is public, it may prove politically imprudent for a range of reasons.

First, the confidentiality surrounding the TPP is already somewhat undermined by general knowledge of what each country’s key policy positions are, for example, in relation to agricultural barriers and cars, and given key sections of the draft text have been leaked and are in the public domain. In addition, political pressure has meant that some consultation documents have been released with respect to the TTIP. So there is a basis (and precedent) for a greater degree of public consultation.

Second, the public interest in the TPP is considerably greater than seen before for other trade agreements. The TPP’s sheer size, and the involvement of the US, has piqued people’s interest. Indeed, many are hearing about ‘secret negotiations’ and ISDS for the first time. Public concern has been expressed by a wide range of interested groups, including senior members of the medical profession and legal community. Social media has also provided New Zealanders with constant access to opposition views overseas, including from high profile and expert commentators. The dismissal of concerns in this context risks the Government appearing arrogant and out of touch. The Government’s current approach has also allowed opponents of the TPP to define the debate.  

Third, the short period of public consultation after signing of the TPP may not be enough to counter the public opposition that has emerged in the information vacuum the government has allowed. The process for ratification might also fail to bring people on board given Parliament’s power is a blunt “accept or reject”, with no ability to amend the text. The detail of the text will determine the extent to which the Government can allay the public’s main concerns. For example, well drafted ISDS provisions should preserve New Zealand’s ability to regulate in relation to public health issues and the environment. Indications are that concerns around how intellectual property protections will affect PHARMAC may be more difficult to address.

The Government will likely have the numbers needed for Parliament to ratify the TPP (it should have support from both ACT and United Future), but failure to garner public support may have an impact at the next election. Labour’s position on what it will and will not accept under the TPP could also establish clear points of difference that play out in favour of opposition parties. However, Labour will need to reconcile its position with its past trade agreements (which have, for example, included ISDS clauses).

In the news

Auditor-General launches inquiry into Saudi Arabia Food Security Partnership

Auditor-General Lyn Provost will conduct an inquiry into the expenditure of public money on the Saudi Arabia Food Security Partnership (Partnership). Requests for the inquiry were made by Green Party Co-leader James Shaw in May and June this year.

The terms of reference for the inquiry under the Public Audit Act 2001 state that the inquiry will look at:

  • the amount of public money budgeted and spent on the Partnership, how it has been used, and the outcomes achieved;
  • whether the expenditure on services was within the appropriations of Vote Foreign Affairs and Trade;
  • the procurement and contract management practices used by the Ministry and New Zealand Trade and Enterprise to purchase services relating to the Partnership;
  • whether the services received were in keeping with the business case and contract specifications; and
  • any other related matter that the Auditor-General considers it desirable to inquire into and report on.

The Auditor-General intends to report publicly on her findings once she has concluded the inquiry.

The Auditor-General’s announcement can be found here.


Financial Markets Authority release guidance for Managed Investment Scheme managers

The Financial Markets Authority (FMA) has published an information sheet for Managed Investment Scheme (MIS) managers. The information sheet intends to supplement the MIS manager licensing application guide by addressing market misconduct risks faced by managers who trade directly in financial products. Market misconduct risks could include: insider trading or market manipulation; trade allocation biases; and lack of best execution.

The information sheet is split into two broad areas – Governance and Potential controls:

  • Governance: Boards and senior management must be comfortable that, where possible, they have mitigated the risk of market misconduct and eliminated potential problems.
  • Potential controls: the information sheet sets out examples of risk and compliance methods used worldwide by fund managers, including:
    • segregation of activity method: front-office and back-office roles are segregated and in different reporting lines;
    • conflict of interest policy: managers carefully consider potential conflicts of interest and provide clear guidelines on how they will be addressed; and
    • post-trade monitoring and reporting: managers develop guidelines for the post-trade monitoring, detection, and assessment of potentially suspicious trades. Any trades that raise a potential red flag are escalated to the appropriate management level.

A copy of the information sheet can be found here.


Iwi consultation grounded in law

The passing of the Hawke’s Bay Regional Planning Committee Act 2015 means iwi input is now embedded in environmental planning decisions in the Hawke’s Bay region. The Act, which came into effect on 15 August, establishes the Hawke’s Bay Regional Planning Committee (Committee), a joint committee that comprises half Hawke’s Bay iwi representatives and half Hawke’s Bay Regional councillors.

The Committee has existed informally since 2011 as a result of Treaty of Waitangi settlements. Under the Act, the Committee is empowered to oversee the review and development of the Regional Policy Statement, the Regional Resource Management Plan, and the Regional Coastal Environmental Plan.

The Committee means iwi are now involved at the early stages of consent applications, shifting from a position of ‘interested bystander’ to being at the table from the beginning of the process. Minister for Treaty of Waitangi Negotiations, Hon Chris Finlayson, described the legislation as forming the basis of a “new, constructive, on-going relationship” between the Hawke’s Bay Regional Council and the iwi of the Hawke’s Bay region. Decisions made by the Committee cannot be overturned by the council, though the council can send the matter back for further consideration before it is released for public consultation.

Anticipating possible council amalgamation in the region, the Act future-proofs the Committee should amalgamation go ahead.


Minister announces review of Fisheries Management System

Minister for Primary Industries, Hon Nathan Guy, announced an operational review of the Fisheries Management System under the Fisheries Act 1996 (Act) during his speech at the 2015 New Zealand Seafood Industry Conference on 19 August.

The Minister stated that a review was necessary to ensure that New Zealand’s fishing system is up to date and working fairly and efficiently, noting that it had been 19 years since the Act was passed.

The operational review will seek to strengthen public confidence and foster community support by providing opportunities for involvement in local area management. The review will not undermine existing rights and interests of commercial, customary and recreational fishers, Treaty settlements or core elements of the Quota Management System. The review will be high-level, not intending to touch on the detail of things like recreational fishers’ bag limits or fishing quotas.

The Minister indicated that the review could result in: changes to fisheries management processes within the current legislation; regulatory change; and/or amendments to the Act.

Over the coming weeks, the Ministry for Primary Industries will seek stakeholder organisations’ views on the strengths and weaknesses of the current system, and opportunities and priorities for change. The Minister will decide on the appropriate next steps after consideration of the feedback received.

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

New Zealand's renewable energy supply at record high

The Ministry of Business, Innovation and Employment has released its annual publication on key trends in the energy sector, the Energy in New Zealand report (ENZ report). The key finding of the report is that the proportion of renewable energy making up New Zealand’s total primary energy supply is at a record high of 39.5 per cent.

Total primary energy supply measures all the energy used in a country, including raw energy produced domestically (such as coal, wind and oil) and all energy imported (such as petrol and diesel). The record high renewable energy supply places New Zealand third in the world behind Iceland and Norway. Energy and Resources Minister, Hon Simon Bridges, said the result indicates that the country is “making real gains in transitioning to a lower carbon economy”.

Other findings from the ENZ report show that over $2 billion was spent in 2014 on oil and gas exploration. A total of 33 wells were drilled in 2014, 22 of which were exploration wells. Acknowledging that the Government was championing more spending on oil and gas while also promoting renewable energy, the Minister noted that the Government takes a “long-term view” with a mixed approach to energy sources.

The ENZ report also shows that energy prices rose 3.8 per cent in the last year, and that electricity consumption rose by 1.2 per cent in 2014. The large increase in consumption – up 14.5 per cent from 2013 – was due to the agriculture, forestry and fishing sectors.

The Minister considers the increase in renewable energy a sign that more businesses are making the most of New Zealand’s “renewable advantage”. Initiatives such as Wood Energy South, which promotes clean wood energy, are being encouraged to help realise renewable energy potential and further lift New Zealand’s proportion of renewable energy.

A copy of the ENZ report can be found here.


Referendums to commence on new national flag

With the passing of the New Zealand Flag Referendums Act 2015 on 13 August, the public will now determine whether New Zealand should have a new flag.

The Act establishes a process for holding two postal referendums. The first referendum will use a preferential voting system to determine which of four alternative flag designs voters prefer. The four alternative designs will be selected by the Flag Consideration Panel, a non-partisan group consisting of 12 members chosen by Government following nominations from a Cross Party Groups of MPs. The majority of the Panel members are either an Officer or Companion of the New Zealand Order of Merit.

The second referendum will use a first past the post voting system to determine whether the current New Zealand Flag, or the successful alternative design, is preferred by voters.

The first referendum is due to take place from 20 November to 11 December 2015, with the second referendum set for 3 March to 24 March 2016.

If a new flag is chosen, it will be flown on days of national commemoration and on government buildings as detailed in the Flags, Emblems and Names Protection Act 1981. Outside of this, New Zealanders may continue to fly the flag of their choice. As recognised in 2009, a change to the New Zealand flag does not affect the status of the national Māori flag.


Reserve Bank responds to submissions on LVR rule changes

The Reserve Bank of New Zealand has published a summary of submissions and final policy positions relating to changes in the Loan to Value Ratio restriction rules (LVRs), and the asset classification of residential property investment loans in the Capital Adequacy Framework. The Reserve Bank has modified its proposals in response to feedback about compliance challenges and special cases.

In May this year, the Reserve Bank announced it would be altering existing LVR rules to tighten LVR restrictions on Auckland residential property investors, while easing restrictions outside Auckland. Submissions on the Reserve Bank’s initial package of proposals closed on 13 July. The proposed new LVR rules will take effect from 1 November 2015.

The Reserve Bank’s final policy position adopts a 5 per cent speed limit for high LVR loans to Auckland investors (up from the 2 per cent originally proposed), and introduces an exemption for high LVR lending to finance leaky building remediation and similar cases.

The Reserve Bank’s final policy position on the adjusted LVR rules can be found here.


The Treasury releases annual Benchmarking Report

The Treasury has released its Administrative & Support Services Benchmarking Report for the Financial Year 2013/14 (Report). The purpose of the Report is to provide information on the cost, efficiency, and effectiveness of administrative and support services across 26 public sector agencies over the last financial year (including Ministry of Business, Innovation and Employment, Ministry for Primary Industries, Department of Internal Affairs, New Zealand Transport Agency, New Zealand Trade and Enterprise and Statistics New Zealand). 

The Report sets out the key commentary and findings in relation to five core administrative and support service functions: Human Resources; Finance; Information and Communications Technology; Procurement; and Corporate and Executive Services. The findings underscore the importance of a range of administrative and support service improvement initiatives underway across government, including the Government ICT Strategy and Action Plan, Procurement Functional Leadership and the Property Management Centre of Expertise.

The full Report can be accessed here. Each agency’s individual report is available on their website.


Thirty Year Infrastructure Plan Released

The National Infrastructure Unit released “The Thirty Year New Zealand Infrastructure Plan 2015” (Plan) on 20 August 2015. The Plan, developed by the National Infrastructure Unit with the National Infrastructure Advisory Board in collaboration with local government and industry, sets out 145 initiatives that aim to deliver a new approach to infrastructure development in New Zealand over the next 30 years. The Plan builds on two previous plans released in 2010 and 2011.

The Plan includes a suite of actions that will be undertaken to deliver on the initiatives and drive the two outcomes sought from the Plan: the better use of existing infrastructure; and the better allocation of new investment.

Key initiatives include:

  • developing national data standards for roads, water and buildings to ensure consistent assessment of infrastructure nationwide;
  • establishing centres of excellence to utilise this data to improve infrastructure decision-making;
  • investigating effective processes for long-term integrated regional planning;
  • increasing focus on non-asset solutions (ie demand management to make better use of existing networks); and
  • developing a better trans-Tasman infrastructure market.

The National Infrastructure Unit, which sits within The Treasury, was established in 2009 to deliver the Government’s objectives relating to infrastructure. The National Infrastructure Advisory Board, which consists of members from the private sector and outside central government, provides advice to the responsible Minister and the National Infrastructure Unit on the development of the Plan.

A copy of the Plan can be accessed here.

Progress of legislation

New Bills

Affordable Healthcare Bill
Type of Bill: Members
Member in Charge: Barbara Stewart
This omnibus Bill aims to amend the Immigration Act 2009, the Income Tax Act 2007, and the Social Security Act 1964. The Bill would insert a new section 22(6)(b)(iv)(c) into the Immigration Act to require certain applicants for a visa in the parent category to have health insurance arrangements which cover at least the first ten years of the applicant’s residency in New Zealand. The Bill seeks to amend section CX16 of the Income Tax Act by removing fringe benefit tax from health insurance. The Bill would insert provisions into the Social Security Act to establish a health insurance premium rebate for holders of a SuperGold Card. These amendments are said to promote higher voluntary levels of health cover to prevent future rationing of public health and service cuts.

Agricultural Compounds and Veterinary Medicines Amendment Bill
Type of Bill: Government
Member in Charge: Hon Jo Goodhue
This Bill would replace Part 6 of the Agricultural Compounds and Veterinary Medicines Act 1997 with a number of new provisions that extend the maximum period of protection for confidential innovative trade name products from five to eight years. The Bill would also expand the scope of data protection coverage under the principal Act to include confidential information provided in support of applications to register non-innovative trade name products and uses. These amendments are said to achieve a balance between encouraging competition in the innovative and generic agricultural compounds market in New Zealand, and encouraging registration of products to be competitive internationally. 

Child Protection (Child Sex Offender Register) Bill
Type of Bill: Government
Member in Charge: Hon Anne Tolley
This Bill seeks to establish a Child Sex Offender Register to hold certain information about registerable offenders. The Bill defines a “registerable offender” as a person who is convicted of a qualifying child sex offence contained in the schedule of the Bill, and sentenced to either a term of imprisonment or made subject to a registration order. Section 9 of the Bill would require the Register to contain the registerable offenders name, qualifying offence(s), and dates of sentencing and release from custody. Further, the Bill would require registerable offenders make periodic reports to the Commissioner detailing changes to the offenders relevant personal information including a change in their residence, motor vehicle, or place of employment. Section 39 of the Bill requires the Commissioner to ensure that information and access to the register is only used for investigating prescribed child sex offences and to enable the monitoring of registerable offenders in the community.

Electricity Industry (Small-Scale Renewable Distributed Generation) Amendment Bill
Type of Bill: Members
Member in Charge: Gareth Hughes
This Bill intends to remove existing barriers, and create a fair regime for small-scale renewable electricity generators, to encourage greater small-scale renewable distributed generation (SSRDG). The Bill seeks to insert a new section 43A into the Electricity Industry Act 2010 which would require the Electricity Authority to amend the Electricity Participation Code 2010 so that retailers must pay a fair and reasonable minimum rate for SSRDG electricity above the wholesale electricity price. The Bill would also create a mechanism for annual adjustments to the rate for new installations and provide a process of standardisation of connection procedure for retailers and distributors.

Employment Standards Legislation Bill
Type of Bill: Government
Member in Charge: Hon Michael Woodhouse
This omnibus Bill would make a number of changes to employment legislation contained in the Parental Leave and Employment Protection Act 1987, the Employment Relations Act 2000, the Holidays Act 2003, the Minimum Wage Act 1983, and the Wages Protection Act 1983. The Bill provides for its division into five separate amendment Bills during the Committee of the House stage. The changes in the Bill are said to promote a fairer and more productive workplace by enhancing benefits and protections for both employers and employees. 

Imprest Supply (Second for 2015/16) Bill
Type of Bill: Government
Member in Charge: Hon Bill English
This Bill would provide the Government with financial authority additional to that sought in the Appropriation (2015/2016 Estimates) Bill to ensure the Government has sufficient supply to implement Cabinet decisions. The Bill provides for its repeal at the end of the 2015/16 financial year when it will be replaced by an Appropriation Act.

Keep Kiwibank Bill
Type of Bill: Members
Member in Charge: Hon Clayton Cosgrove
This Bill seeks to prevent the future sale of Kiwibank by New Zealand Post. Section 6 of the Bill would prevent New Zealand Post selling or disposing of ownership or control of all or any of its interests in Kiwibank unless agreed to by a 75 per cent majority of members of Parliament, or by a majority of votes cast in a public referendum.

Sale and Supply of Alcohol (Extended licensing hours during Rugby World Cup) Bill
Type of Bill: Members
Member in Charge: David Seymour
This Bill aims to extend the licensing hours of premises covered by the Sale and Supply of Alcohol Act 2012 for the 2015 Rugby World Cup. Section 5 of the Bill would insert additional conditions to current licences so that if a Rugby World Cup game starts within two hours of the end of the standard closing hours of premises, those hours are extended until one hour after the end of that game. The Bill would also amend current licence conditions so that if a game starts more than two hours after the end of the standard hours of a licence, those hours are extended to enable the premises to open half an hour before the start of the game, and remain open until one hour after the conclusion of the game. The Bill provides that in order to qualify for the extended hours, the premises must broadcast the relevant games and implement a system which ensures that the primary purpose of patrons entering the premises during the extended hours is to watch the game.

Taxation (Bright-line Test for Residential Land) Bill
Type of Bill: Government
Member in Charge: Hon Todd McClay
This Bill seeks to amend the Income Tax Act 2007 and the Tax Administration Act 1994 to improve compliance with the current land sale rules in the Income Tax Act 2007. The Bill would introduce a “bright-line test” into the Income Tax Act to require that an amount that a person derives from disposing of residential land is “income” of the person, if the date of disposal for the residential land is within two years of registration or, if the land is not registered, the date of acquisition. The Bill would provide certain exemptions from the bright-line test.


Bills awaiting first reading

Affordable Healthcare Bill
Agricultural Compounds and Veterinary Medicines Amendment Bill
Child Protection (Child Sex Offender Register) Bill
Education (Charter Schools Curriculum) Amendment Bill
Electricity Industry (Small-Scale Renewable Distributed Generation) Amendment Bill
Employment Standards Legislation Bill
Financial Assistance for Live Organ Donors Bill
Keep Kiwibank Bill
Land Transport (Safer Alcohol Limits for Driving) Amendment Bill
Legislation Amendment Bill
Māori Purposes Bill
New Zealand Superannuation and Retirement Income (Pro Rata Entitlement) Amendment Bill
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Official Information (Parliamentary Under-Secretaries) Amendment Bill
Parental Leave and Employment Protection (Six Months’ Paid Leave and Work Contact Hours) Amendment Bill
Remuneration Authority Amendment Bill
Social Workers Registration (Mandatory Registration) Amendment Bill
SuperGold Health Check Bill
Taxation (Bright-line Test for Residential Land) Bill
Taxation (Transformation: First Phase Simplification and Other Measures) Bill


Bills defeated

Local Government Act 2002 (Greater Local Democracy) Amendment Bill
Member in Charge: Stuart Nash
60 in favour: Labour 32; Green Party 14; New Zealand First 12; Māori Party 2.
61 against: National 59; ACT New Zealand 1; United Future 1.


Bills before Select Committee

Submissions open

Bill

Select Committee

Closing date for Submissions

Christian Churches New Zealand Property Trust Board Empowering Bill

Government Administration

18 September

Environmental Protection Authority (Protection of Environment) Amendment Bill

Local Government and Environment

10 September

Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill

Health

Not called

Hineuru Claims Settlement Bill

Māori Affairs

24 September

Minimum Wage (Contractor Remuneration) Amendment Bill

Transport and Industrial Relations

24 September

Ngāruahine Claims Settlement Bill

Māori Affairs

24 September

Public Collections and Solicitations (Disclosure of Payment) Bill

Social Services

30 September

Social Housing Reform (Transaction Mandate) Bill

Social Services

1 October

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

Social Security

9 September

Subordinate Legislation Confirmation Bill

Regulations Review

Not called


Submissions closed

Bill

Select Committee

Report Due (2015)

Accident Compensation (Financial Responsibility and Transparency) Amendment Bill

Transport and Industrial Relations

3 November

Building (Earthquake-prone Buildings) Amendment Bill

Local Government and Environment

3 September

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

Law and Order

10 September

Electronic Monitoring of Offenders Legislation Bill

Law and Order

4 December

Evidence Amendment Bill

Justice and Electoral

2 January (2016)

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

Local Government and Environment

24 December

Māori Language (Te Reo Māori) Bill

Māori Affairs

25 September

New Zealand Business Number Bill

Commerce

5 November

Passports Amendment Bill (No 2)

Government Administration

30 October

Sale and Supply of Alcohol (Extended licensing hours during Rugby World Cup) Bill

Justice and Electoral

26 August

Support for Children in Hardship Bill

Social Services

3 November

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

Foreign Affairs, Defence and Trade

3 November

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

Finance and Expenditure

11 September

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.

Coroners Amendment Bill (as reported by the Justice and Electoral Committee)
Defence Amendment Bill
Housing Corporation Amendment Bill
Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill
Policing (Cost Recovery) Amendment Bill
Public Health Bill
Radiation Safety Bill (as reported by the Health Committee)
Register of Pecuniary Interests of Judges Bill
Regulatory Standards Bill
Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill
Spending Cap (People’s Veto) Bill
Taxation (Income-sharing Tax Credit) Bill
Taxation (Land Information and Offshore Persons Information) Bill (as reported by the Finance and Expenditure Committee)
Weathertight Homes Resolution Services Amendment Bill


Bills awaiting third reading

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


Acts assented

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

Hawke’s Bay Regional Planning Committee Act 2015
This Act creates the Hawke's Bay Regional Planning Committee (RPC) as a joint committee of the Hawke’s Bay Regional Council for the purposes of Local Government Act 2002. Section 9 of the Act empowers the RPC to oversee the development and review of documents for the Hawke's Bay region required by the Resource Management Act 1991. The RPC is to be made up of ten representatives appointed by local tāngata whenua and ten representatives appointed by the Council, and is said to improve tāngata whenua involvement in the development of Resource Management Act documents affecting the region.

Imprest Supply (Second for 2015/16) Act 2015
This Act provides a statutory mechanism allowing Parliament to provide the Government with the authority to incur expenses and capital expenditure during the 2015/16 year in advance of authorisation under an Appropriation Act. The Act also authorises capital injections to be made to departments (other than intelligence and security departments) and Offices of Parliament during the 2015/16 year in advance of authorisation under an Appropriation Act. The Act is due to be repealed on 30 June 2016.

New Zealand Flag Referendums Act 2015
This Act establishes a process for holding two postal referendums to determine whether New Zealand should have a new flag. The Act enables an initial referendum to be held, using a preferential voting system, to determine which of four alternative designs voters prefer. The Act then requires that a second referendum be held, using a first past the post voting system, to determine whether the current New Zealand Flag, or the alternative design successful in the initial referendum, is preferred by voters. The Act also contains provisions enabling the appointment and functions of the returning officer, and provides for a number of consequent amendments to the Flags, Emblems and Names Protection Act 1981 should the referendums result in a flag change.


Legislative instruments

Biosecurity (Costs) Amendment Regulations (No 2) 2015
Credit Contracts and Consumer Finance Amendment Regulations (No 3) 2015
Education (2016 School Staffing) Order 2015
Education (Extension of Application Period) Order 2015
Financial Markets Conduct (Financial Reporting: Balance Dates of Managers and Registered Schemes) Exemption Notice 2015
Financial Markets Conduct (KiwiSaver) Amendment Regulations 2015
Fisheries (Cost Recovery Levies for Conservation Services) Order 2015
Fisheries (Cost Recovery Levies for Fisheries Services) Order 2015
Fisheries (Notification of Tangata Tiaki/Kaitiaki for Area/Rohe Moana of Hokonui Rūnanga) Notice 2015
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Mātaitai Reserve at Pikomamaku) Notice 2015
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Mātaitai Reserve at Kaihuka Island) Notice 2015
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Mātaitai Reserve at Horomamae/Owen Island) Notice 2015
Housing Accords and Special Housing Areas (Auckland – New August 2015 Areas) Order 2015
KiwiSaver Amendment Regulations 2015
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules (No 2) 2015
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2015
Local Government Elected Members (2015/16) (Auckland Council and Local Boards) Determination 2015
Medicines Amendment Regulations (No 2) 2015
Sports Fish Licences, Fees, and Forms Notice 2015
Student Loan Scheme (Charitable Organisations) Amendment Regulations 2015

In the week ahead

What’s coming up in the House

The Government will look to progress the Health and Safety Reform Bill, which is awaiting it’s third reading. The Bill is set to pass into law this Thursday.  

In committee

Recent Committee meetings

Select Committees met over the last two weeks.

The Finance and Expenditure Committee considered a Report from the Controller and Auditor-General, Reflections from our audits: Service delivery.

The Law and Order Committee considered the Electronic Monitoring of Offenders Legislation Bill.

The Social Services Committee considered the Support for Children in Hardship Bill.

The Foreign Affairs, Defence and Trade Committee heard submissions on the international treaty examination of two Agreements: the World Trade Organization Agreement on Trade Facilitation; and the Asian Infrastructure Investment Bank Agreement – adopted at the fifth Chief Negotiators’ Meeting on 22 May 2015. The Articles of the Asian Infrastructure Investment Bank Agreement and official reports on the Agreement can be accessed here.

The Local Government and Environment Committee considered the Building (Earthquake-prone Buildings) Amendment Bill.

The Justice and Electoral Committee continued its inquiry into the 2014 general elections.

In the courts

High Court requires pecuniary loss in corporate plaintiff's defamation case

CPA Australia Ltd v The New Zealand Institute of Chartered Accountants
Wellington High Court, 6 August 2015, [2015] NZHC 1854

The High Court has commented on the scope of section 6 of the Defamation Act 1992 in terms of the requirements needed for a corporate plaintiff to bring an actionable claim in defamation. 

The plaintiff, CPA Australia Limited (Plaintiff) sought a declaration that The New Zealand Institute of Charted Accountants (Defendant) was liable in defamation for statements made by the Defendant in its marketing campaign, in particular, statements made by its Chief Executive during an accounting conference in 2013. 

Justice Dobson, delivering the judgement of the Court, held that while the Plaintiff had made out elements of actionable defamation, as a corporate plaintiff, it was required to prove that the statements complained of have caused pecuniary loss to it, or that those statements are likely to cause it loss in the future.

Section 6 of the Defamation Act provides that:
Proceedings for defamation brought by a body corporate shall fail unless the body corporate alleges and proves that the publication of the matter that is the subject of the proceedings:
(a) Has caused pecuniary loss; or
(b) Is likely to cause pecuniary loss
to that body corporate.

His Honour upheld the Defendant’s interpretation of the scope of section 6 that: section 6(b) accommodated the different temporal consideration of loss that a plaintiff could prove was likely to occur in the future. The Plaintiff unsuccessfully argued that section 6(b) lowered the required standard of proof so that a corporate plaintiff need only prove a defamatory utterance was likely to cause pecuniary loss. 

His Honour also rejected the Plaintiff’s argument that the nature of the corporate plaintiff’s onus under section 6 to prove pecuniary loss was lessened because it sought only a declaration, and not any amount for damages.

Although not necessary for his decision, His Honour also endorsed the proposition that the law adopt the requirement in England for a plaintiff to make out a minimum threshold of seriousness for actionable defamation. Under the English approach, the Plaintiff would have needed to establish not only that the statements were to its discredit, but that they caused serious harm to its reputation. His Honour held that the Plaintiff would not have met the threshold where it was unable to establish pecuniary loss.


Waitangi Tribunal binding recommendations not a remedy of last resort

Flavell v Waitangi Tribunal
Wellington High Court, 12 August 2015, [2015] NZHC 1907

The High Court has found that the Waitangi Tribunal (Tribunal) erred in law when it declined Ngāti Kahu's application for binding recommendations relating to its historical grievance claims. The decision demonstrates the approach the Tribunal should take when considering whether to make a binding recommendation relating to land under sections 8A and 8HB of the Waitangi Act 1975 (Act) and distinguishes the Supreme Court decision in Haronga v Waitangi Tribunal [2011] NZSC 52, [2012] 2 NZLR 53.

The decision arose from an application by Ngāti Kahu to the Tribunal for binding recommendations for the resumption of certain lands claimed within its rohe, and in relation to Crown forest assets, including accumulated rentals. The Tribunal is empowered to make binding recommendations in relation to land in the name of a State enterprise and/or Crown forest land under sections 8A and 8HB of the Act. The process provided for under these sections is variously termed a “binding recommendation” or “resumption order” as the effect is to require the Crown to resume ownership of land that has been transferred subject to memorials recognising the prospect of interests for Māori claimants.  Ngāti Kahu, in its application for judicial review of the Tribunal's decision,  argued that the Tribunal had erred in law by indicating in its Remedies Report that it would not make binding recommendations unless satisfied that other forms of recommendation were inadequate (The Ngāti Kahu Remedies Report (Wai 45, 2013)).

Justice Dobson, delivering the judgement of the Court, held that the Tribunal was wrong to treat binding recommendations as a remedy of last resort. Framing binding recommendations this way effectively imposed an additional onus on applicants to demonstrate that there are no appropriate alternatives. His Honour, in considering the Supreme Court’s decision of Haronga (ie the power should be used only when there is no other means of securing the redress that the claimant should receive), found that the Tribunal’s approach to an application for binding recommendations should reflect the evolving jurisprudence on the settlement of Treaty claims. The Tribunal’s reasoning that “binding recommendations require extra care” was only appropriate as a matter of first principle. His Honour held that the Tribunal’s power to make binding recommendations is to be treated as a component of its wider powers – exercised in accordance with the provisions in section 6(3) of the Act (Tribunal’s jurisdiction to consider claims).
 
His Honour also found that the Tribunal had failed to consider its potential position as a “circuit breaker” in circumstances where it may be necessary to intervene as settlement negotiations between Ngāti Kahu and the Crown had reached a stand-still.

His Honour distinguished the present case from Haronga on the grounds of fact and context. Unlike Haronga, the case was not a situation where the Tribunal declined to address the question of whether Ngāti Kahu should have binding recommendations, but rather that Ngāti Kahu did not agree with the Tribunal’s negative answer on the merits of that question. Further, Ngāti Kahu was pursuing a remedies application in the context of a generalised claim for historic grievances, not tagged to specific pieces of land (as in the case of Haronga).

In trade

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)

Charles Parsons (NZ) Limited
Auckland

Woven fabric containing wool:
Ref: N96058 “Montal”; 55% polyester, 45% wool; weight 232g/m² – 15,000m²

5515.13.29

8 September

Knitted fabric:
Ref: T1526 “TK700”; 100% polyester – 40,000m²

6005.31.19

8 September

New Zealand Health Manufacturing Limited
Auckland

Gelatin, pharmaceutical grade, 240MT only, for own use in manufacture by New Zealand Health Manufacturing, for the period 1 June 2015 to 31 May 2016

35.03

8 September

Westland Milk Products Investments Limited
Hokitika

Monohydrate lactose powder, 12,000MT only, for own use in manufacture by Westland Milk Products, for the period 1 June 2015 to 31 May 2016

1702.11
1702.19

8 September

In consultation

New

Who

What

By when (2015)

Commerce Commission

Report on the state of competition in the New Zealand Dairy Industry: Cross-submissions on the substantive issues

31 August

Customised price-quality path fast track processes for input methodologies review Submissions on limb 1 draft decision

25 September

Department of Conservation

Proposal for management activities at Ormond Kohi Bush Recreation Reserve

4 September

Intention to transfer Building Control Functions of Offshore Islands to the Southland District Council

11 September

Application by Natural History New Zealand for a permit to film marine mammals at Fiordland, Kermadec Islands, Banks Peninsula, Chatham Islands and White Island

12 September

Intention to grant 40 year concession to Otehei Bay Holdings to operate a resort and associated facilities at Otehei Bay, Urupukuka Island, Bay of Islands

18 September

Abel Tasman Foreshore Scenic Reserve Management Plan partial review

12 October

Intention to grant concession to Ruapehu Alpine Lifts Ltd for a licence to occupy Whakapapa Ski Area

21 October

Electricity Authority

Proposed amendments to the Electricity Code 2010 to require generators to ensure their assets remain connected to the system during transmission faults

6 October

Financial Markets Authority

Proposed exemption relief for issuers offering securities as part of a “script bid” in a takeover offer

25 September

Food Standards Australia New Zealand

Mandatory allergen labelling requirements and selected exemptions

23 September

Gas Industry Co

Amendment process change request by Mighty River Power

8 September

Inland Revenue Department

Depreciation treatment for “buildings with prefabricated stressed-skin insulation panels” in the buildings and structures asset category

14 September

Income tax and Insurance: income tax treatment of personal sickness and accident insurance taken out by an employee where the employer does, or does not, pay the premiums on an employee’s behalf

17 September

Income tax: date of acquisition of land acquired under section CB 15B

17 September

Income tax: tax treatment of allowance paid to chainsaw operators

17 September

Government discussion document – GST: Cross-border Services, Intangibles and goods

25 September

Ministry of Health

Strategy to Prevent and Minimise Gambling Harm 2016/17 to 2019/19 consultation document

11 September

Ministry for Primary Industries

Proposal to amend the New Zealand (maximum residue Limits of Agricultural Compounds) Food Standards 2015

26 August

Draft import health standard for importing animal fibre

18 October

Maritime New Zealand

Proposed amendments and additions to the Marine Protection Rules 132: New Zealand Oil Spill Control Agents and discussion paper

28 August

Pharmac

Request for information from suppliers of novel direct-acting antiviral agents for the treatment of hepatitis C

21 September

Standards New Zealand
– Joint standards

Tapping screws thread

2 September

Performance requirements for Hot-dip galvanized coatings on threaded fasteners (ISO metric coarse threat series)

25 September

Revision of AS/NZS 4410:1996: Hexagon flange head tapping crews

25 September

Medical electrical equipment:

  • Part 2.17: requirements for the basic safety and essential performance of automatically-controlled brachytherapy afterloading equipment
  • Part 2.18: requirements for basic safety and essential performance of endoscopic equipment
  • Part 2.21: requirements for the basic safety and essential performance of infant radiant warmers
  • Part 2.45: requirements for basic safety and essential performance of mammographic X-ray equipment and mammographic stereotactic devices

25 September

Approval and test specification – Air-break switches: amendment to clauses 13.12.1 and 13.13.2

30 September

Gas appliances:

  • Part 1.6: Gas ducted air heaters – revision of AS 4556:2011

30 September

Gas appliances:

  • Part 1.8: Decorative effect gas appliances – revision of AS 4558:2011

1 October

Gas Installations:

  • Part 1 – Gas installations
  • Part 2: LP Gas installations in caravans and boats for non-propulsive purposes

19 October

Approval and test specification – Electrical safety requirements and test methods for residual current devices

21 October

Luminaries Part 2.1: particular requirements – fixed general purpose luminaries

21 October

Current

Who

What

By when (2015)

Commerce Commission

Input methodologies Review – invitation to contribute to problem definition: Corss submissions

4 September

Transpower TPM operational review initial consultation paper

Ongoing

Department of Conservation

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

9 September

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

16 September

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

18 September

Changes in status of New Zealand bat, bird, reptile and frog taxa to inform a revision of the lists for these groups in the New Zealand Threat Classification System

31 October

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

Ongoing

Environmental Protection Authority

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

3 September

Food standards Australia and New Zealand

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

26 August

Inland Revenue Department

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

2 September

 

Draft statement of Commissioner’s practice for:

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

25 September

Ministry for Primary Industries

Draft import health standard for importing natural sausage casings

14 September

Reserve Bank

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

16 September

Standards New Zealand
- Joint standards

 

 

 

 

 

 

 

 

 

 

Explosive atmospheres:

  • Part 2: Equipment protection by pressurized enclosure ‘p’
  • Part 5: Equipment protection powdered filing ‘q’
  • Part 6: Equipment protection by oil immersion ‘o’
  • Part 26: Equipment protection level ‘Ga’
  • Part 29.2: Gas detectors – selection, installation, use and maintenance
  • Part 10.2: Classification of areas – combustible dust atmospheres

26 August

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

27 August

Domestic solid fuel burning appliances – Test fuels part 2: Softwood

28 August

Information and documentation – Interlibrary transactions

1 September

Refrigerating systems and heat pumps – Safety and environmental requirements:

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

1 September

Designation and safety classification of refrigerants

1 September

Lamp controlgear:

  • Part 1: general and safety requirements
  • Part 2.3: particular requirements for a.c. and/or d.c supplied electronic controlgear for fluorescent lamps

2 September

Specification for preservative treatment

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

4 September

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

8 September

Electrical Installations – Selection of cables:

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

8 September

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

16 September


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

Read more:
Watching Brief
Talk to one of our experts:
Related Expertise