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Watching Brief – October 2016

Home Insights Watching Brief – October 2016

Matter of opinion

Think Local and Act...

The local government elections have come and gone, with Labour aligned mayoral candidates faring relatively well, possibly better than their central government counterparts might do if a general election was held any time soon.

However, it is difficult to read much, if anything, into results which are based on alarmingly low voter turnout. According to a Radio New Zealand report, overall voter turnout was 39.5 percent, down 1.8 percent on the last election, and much lower than the 49 percent turnout in 2010. This trend south comes despite considerable efforts being made across the country to provide information about candidates and increase turnout on the day.

The current situation is hardly satisfactory for any well functioning democracy. It is also concerning that voter turnout is falling as local government’s influence and role in our day to day lives is increasing. The Auckland Council in particular has greater autonomy and responsibility since it became a ‘super council’. More broadly, local government key areas of focus are extending beyond infrastructure and cultural and sporting activities to social issues such as affordable housing and the standard of housing (rental warrants of fitness). Local governments, while creatures of statute, also have a range of regulation making powers, particularly in the resource management area.  

The low turnout has heightened calls for the introduction of electronic voting. However, according to the Minister of Local Government, Peseta Sam Lotu-Iiga, international evidence suggests that introducing online voting does not lead to a significant increase in turnout. At best the international evidence appears to be inconclusive.

Given this, turn out is unlikely to significantly improve unless the public are better informed about the role of local government and how it impacts on their lives and their communities. As Sir Geoffrey Palmer opines, because local government and its role is not well understood, people often do not think much about it. Yet local decision-making, local responses to local issues, and local accountability are critical components of our democracy. His answer is a set of constitutional principles for local government that will better ensure democratic engagement at a local level.

Alternatively, we might like to consider the considerable task we ask of voters at local body elections. Whereas in general elections voters are asked to vote twice – for their local MP and for their party vote – at local elections those who are brave enough to open their ballot papers are subject to a deluge of decisions. If we really want to raise voter engagement and turnout, would we be sensible to remove DHB and, in Auckland, local board – or in some cases the sub-committee of the local board – from the ballot paper? It would be a brave government that chose to remove this layer of democracy from the local level, but with turnout so low such a move may well be justified.

Overall, efforts to date to engage the public in local politics have failed and indications are that electronic voting will not be a magic bullet. Short of constitutional or structural change, it will be necessary to continue to try and improve understanding of why local government matters. High quality performance from mayors and councillors could also help change public perceptions of local government as second rate to central government and of limited significance. What is clear, however, is that there is considerable untapped potential for New Zealanders to have a meaningful say in how their communities function.


In Politics

The line between politicians and the judiciary is a big one – and deliberately so

The separation between our courts and politicians is a deliberate and fundamental aspect of New Zealand’s constitutional arrangements. Quite rightly, we pride ourselves on maintaining a strong commitment to the rule of law and an independent judiciary. And, by and large, that independence is steadfast and seldom called into question. And so it should be – an independent judiciary promotes certainty and consistency, not just in matters of criminal justice but so too for civil and commercial matters.

The importance of our independent judiciary is well recognised. However, the independence that our courts have displayed in the last month has attracted varying levels of public and political criticism. Most notably, Judge Bruce Davidson’s decision at the Wellington District Court to discharge an up-and-coming rugby player without conviction on an assault charge, on the grounds that conviction would harm his rugby career prospects, attracted outrage.

Among the critics were, predictably, politicians, including Labour’s police spokesman Stuart Nash. Mr Nash argued that despite public campaigns on reducing violence, decisions such as Judge Davidson’s called into question New Zealand’s commitment to those causes. On the face of it, Mr Nash’s criticism of Judge Davidson’s decision could be seen as an attack on our independent courts.

However, as an elected Member of Parliament representing the public interest, Mr Nash was arguably well within his rights to question the merits of the decision. Speakers Rulings – the rules that explain Standing Orders that all Members must adhere to when speaking in Parliament – establish that once a court has made a decision, a Member is perfectly entitled to “criticise the effects of the findings of a court”, so long as such criticism does not extend to accusations of a judge acting unfairly or unjustly. The basic principle is that Parliament should not seek to influence the conduct of proceedings or question the integrity of the courts, but is entitled to voice its opinion on the substance of a court’s decision.

Mr Nash would have had been wise to have been more careful in another recent high profile decision of the District Court. In Dunedin, a student was sentenced to 300 hours’ community service and ordered to pay reparation for assaulting a Constable during a drunken incident. The Constable was punched several times and lost consciousness.

In that case, Mr Nash called on the Government to tell the Crown Law Office to appeal the “ridiculously light” sentence handed down. Once again, his criticism of the decision was within Speakers Rulings. However, by calling on the Government to instruct the Crown Law Office to appeal, Mr Nash was arguably crossing the line that seeks to prevent Parliamentarians from influencing judicial process. He was also ignoring the fact that the Government is unable to instruct Crown Law to do anything, for this very reason.

The Solicitor-General’s independence is well-recognised. In addition, the Cabinet Manual (which does not apply to Members of Parliament) expressly sets out the separation of the Executive and the judiciary and requires Ministers not to comment “on the results of particular cases or on any sentence handed down by a court. Ministers must avoid commenting on any sentences within the appeal period, and should avoid at all times any comment that could be construed as being intended to influence the courts in subsequent cases”.

As should be the case, the Minister rejected Mr Nash’s calls and, presumably, the Solicitor-General’s office has decided that there are no grounds for an application for leave to appeal. It is pleasing to see that our constitutional safeguards against political meddling in judicial decisions are holding up. A serious risk would arise if a Minister decided to interfere or seek to instruct the Crown Law Office on how judicial proceedings they are not party to should be conducted. The risk is not just present in the criminal system. For example, similar political pressure could be applied to the Minister of Commerce in relation to Commerce Commission prosecutions. Independence is a design feature of good regulation.

It is therefore crucial that Ministers – and politicians aspiring to be Ministers – demonstrate their commitment to fundamental elements of our constitutional arrangements. However, we should bear in mind the role our elected politicians play in the system – a role especially protected by the Speakers Rulings.


In the news

A Constitution for Aotearoa New Zealand launched

The first words in what its authors hope will become a national discussion on New Zealand’s constitution were uttered at the launch of a new book at Parliament on 21 September 2016. A Constitution for Aotearoa New Zealand is the joint work of former Prime Minister Sir Geoffrey Palmer QC and constitutional expert and Russell McVeagh Partner Dr Andrew Butler and proposes a modern, written constitution for Aotearoa New Zealand.

The book sets out the key reasons for the authors’ belief that a written constitution is needed in New Zealand and then presents a proposed Constitution for Aotearoa New Zealand.

This Constitution clarifies and brings together the rules of public power in a single document designed to be more accessible and relevant to modern New Zealand than what the authors describe as the current “hodgepodge of rules”.

While codifying the enduring features of New Zealand’s system of government, the Constitution also proposes an overhaul and modernisation of some prominent features of the current constitutional framework. Notable proposals include replacing the concept of “the Crown” through the legal establishment of the State of Aotearoa New Zealand and replacing the British Monarchy through the creation of a new domestic Head of State elected by the House of Representatives. The functions and law-making power of Parliament are recognised with modifications in the form of a fixed, four-year Parliamentary term and a politically neutral method for electing the Speaker of the House. Significantly, the status of both the Treaty of Waitangi and the Bill of Rights Act is confirmed through direct inclusion in the proposed Constitution.

The authors propose that the Constitution be supreme law through entrenchment requiring a public referendum or a supermajority of 75% of sitting Members of Parliament to authorise amendments, and through granting the courts constitutional jurisdiction to strike down inconsistent Acts of Parliament.

A core aim of the project is to spark a nationwide conversation about what sort of nation New Zealand should be and how New Zealand’s government should operate, and for the public to ultimately achieve ownership of the constitutional project. The authors plan to collect public submissions on the Constitution until the end of September 2017 before releasing a revised version reflecting the feedback received. Readers are encouraged to engage in the discussion though the Constitution Aotearoa New Zealand website, Facebook and Twitter.  

In particular, the authors of the text are seeking guest commentators to contribute to a fortnightly cycle of targeted discussion on different topics and aspects of the constitution, and would welcome contributions from the Watching Brief readership. You can sign up to join the conversation here.  


Auditor General responds to request for Inquiry into Niue resort contract

The Controller and Auditor General, Lyn Provost, has published her response to a request from Labour Leader Andrew Little to conduct an inquiry into the awarding of a management contract for a hotel in Niue.

As we reported in an earlier edition of Watching Brief  here, in 2014 Scenic Hotel Group founder, Earl Hagaman, made a large donation to the National Party. One month later the company won a tender to manage the Matavai resort in Niue, which receives funding from the New Zealand Government. One year after the management contract was awarded; the Government announced an aid grant of $7.5m to go towards an upgrade of the resort.

The Auditor General’s response, dated 7 September, was prepared after Mr Little asked the Auditor General five questions relating to the contract, namely:

  • whether the tender for a hotel operation to brand and operate the resort followed due process and whether all potential and actual conflicts of interest were declared;
  • who knew about links between political donations and the tenderer, and what influence, if any, the donations may have had on the tendering decisions;
  • why the resort was prioritised for $7.5m of development funding and whether that funding fitted within the funding criteria;
  • how the $7.5m in funding will be spent and where most of the benefits will accrue; and
  • to what extent the Niuean people will ultimately benefit from the funding.

The Auditor General’s response notes the questions raised a complex set of questions regarding the Auditor General’s jurisdiction in Niue, and that the Auditor General did not have the mandate to complete a full investigation. Specifically, the Auditor General did not have a mandate under Niuean law to investigate Niue Tourism Property Trust or Matavai Niue Limited (which awarded the Scenic Hotel Group the contract to run the resort) or to inquire into political donations in these circumstances.

That aside, the Auditor General found:

  • there was a standard procurement process, with reasoned and documented analysis for the selection of Scenic Hotel Group as the hotel operator for the resort;
  • the development funding was prioritised to make the resort more effective in attracting customers and supporting tourism growth in Niue, which was consistent with New Zealand's development goals;
  • the expanding of the resort would result in financial benefits to the resort, tourism operators, and other Niuean service providers; and
  • the ultimate benefit to the Niuean people will depend on the success of the resort and of the tourism industry in Niue.

While Mr Little has acknowledged the Auditor General’s response, he has refused to make further comment given his comments on the awarding of the contract are the subject of defamation proceedings brought by Mr Hagaman.

The Auditor General is an officer of Parliament, with the mandate and responsibilities set out in the Public Audit Act 2001. See the Auditor General’s website for more details here. The Auditor General’s response can be accessed here.


Dame Patsy Reddy sworn in as Governor-General

On 28 September 2016, Dame Patsy Reddy was sworn in at Parliament as New Zealand’s new Governor-General.

Dame Patsy, who has been a lawyer, lecturer, company director, reviewer, and Crown negotiator, will be New Zealand’s 21st Governor-General, and the third woman to occupy the office.

The Governor-General is appointed by the Queen as her representative in New Zealand and, by convention, is selected on the advice of the Prime Minister. The Governor-General is not appointed for a specific length of time, but office-holders customarily serve for five years.

The office of the Governor-General derives its powers and duties primarily from the Constitution Act 1986 and the Letters Patent Constituting the Office of Governor-General of New Zealand 1983. As Governor-General, Dame Patsy will have a range of constitutional, ceremonial, international, and community functions to fulfil. The role includes numerous constitutional powers, including:

  • signing into law legislation passed by Parliament (by granting Royal Assent);
  • appointing ministers, judges, justices of the peace and other key public officials, including the Prime Minister;
  • calling elections; and
  • summoning and dissolving Parliament.

As the Queen’s representative, the Governor-General is politically neutral and does not participate actively in the functions of Government. Usually, the Governor-General acts on the advice of Ministers of the Crown.

However, the Governor-General may act without or against the advice of Ministers of the Crown in rare instances, by exercising his or her own discretion under the “reserve powers”. The reserve powers may be used, for example, to appoint the Prime Minister after an election, accept the Prime Minister’s resignation, or even dismiss the Prime Minister.

The Governor-General may also exercise the prerogative of mercy in respect of criminal cases to grant a pardon, reduce a sentence or reopen a case. This power is exercised very rarely by the Governor-General, on the advice of the Minister of Justice.

Further information about Dame Patsy and the office of the Governor-General can be found on the Governor-General’s website, here.


Productivity Commission releases draft report on tertiary education

On 29 September the Productivity Commission released its draft report “New and Emerging Models of Tertiary Education” (Report). The Government commissioned the Report to look into how trends in technology, internationalisation, population, tuition costs, demand for skills, and barriers to innovation may drive changes in business and delivery models in New Zealand's tertiary education sector.

The Report proposes key recommendations and reforms designed to strike the right balance for regulation of the tertiary education sector, including that:

  • competent institutions should self-accredit (as collective accreditation stifles innovation);
  • the EFTS model of subsidising tertiary education should be altered to allow alternatives to the input-based “learning hour” as a basis of calculating funding;
  • the unbundling of research and teaching should be allowed;
  • the Performance-Linked Funding scheme should be discontinued;
  • tertiary education institutions should have more autonomy and responsibility in relation to their assets;
  • there should be greater scope for new education providers to enter the tertiary education market;
  • student access to, and mobility between, different providers should be made easier; and
  • students should be better prepared for tertiary education.

The Report also proposes the concept of a major funding overhaul by way of a Student Education Account. This student-centric model would channel education funding directly into individual student accounts to spend on the tertiary education of their choice, rather than through subsidies to providers.

The Tertiary Education, Skills and Employment Minister, Hon Steven Joyce, has stated that the draft report has some interesting ideas, but the Commission has more work to do; for example, the discussion on improving the flexibility and effectiveness of EFTS funding should continue. The Government has ruled out reintroducing interest on student loans, and is unlikely to consider the introduction of Student Education Accounts – Minister Joyce cautioned against it as “changing one complex system for a new one with its own complexities”.

The Commission is now seeking submissions from all interested parties. Submissions are due by 21 November 2016 and the Commission is scheduled to present its final report to the Government by February 2017.

The Report can be accessed here. The Commission’s press release can be found here, and Minister Joyce and Finance Minister Bill English’s press release can be found here.


Progress on free trade agreement with GCC

New Zealand Trade Minister, Hon Todd McClay, and Saudi Arabian Minister of Commerce and Investment, Dr Majid bin Abdullah Al Qasabi, have agreed to work towards early completion of a free trade agreement (Agreement) between New Zealand and the Gulf Cooperation Council (GCC).

The announcement was made on 29 September 2016, following Minister McClay’s recent trip to Saudi Arabia to chair the biennial Saudi-NZ Joint Ministerial Commission.

The Cooperation Council for the Arab States of the Gulf, more commonly known as the GCC, is a political and economic alliance of Middle Eastern states made up of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. The GCC is New Zealand’s eighth largest trading partner, with trade between the two markets totalling NZ$4.1 billion in the year ending September 2015. Chief among New Zealand’s exports to the region are dairy and meat products, which help to meet the GCC’s high demand for imported food and drinks.

Negotiations for the Agreement first began in 2007, and were concluded in October 2009. However, the Agreement experienced a number of stumbling blocks and was not ultimately signed or ratified.

The Agreement forms part of the New Zealand Government’s broader NZ Inc GCC Strategy, which seeks to strengthen and expand New Zealand’s political and economic relationships in the region.

Potential benefits of the Agreement include:

  • the elimination of tariffs for exporters;
  • better market access in the GCC market;
  • improved import and export procedures; and
  • further opportunities for New Zealand goods and services in the GCC states, with a particular focus on information, education and consulting services, and construction.

Following Minister McClay’s visit, officials representing the GCC and the New Zealand Government will meet to finalise the Agreement.

Further information can be found on the Ministry of Foreign Affairs and Trade website here. The Minister’s press release can be read here.


Progress of legislation

New Bills

Electoral Amendment Bill
Type: Government
Member in charge: Hon Amy Adams
This Bill proposes to amend the Electoral Act in response to the findings of a review of the 2014 general election by the Justice and Electoral Committee. The Bill would allow advanced votes to be counted earlier on election day than they currently are. The Bill also intends to make relevant voting forms more user-friendly and seeks to introduce a new section 197A into the Principal Act that would prohibit electioneering inside advance voting places and close to entrances.

Electronic Interactions Reform Bill
Type: Government
Member in charge: Hon Peter Dunne
This omnibus bill intends to implement ways for individuals and businesses to electronically interact with state sector agencies. The Bill includes proposals from the Department of Internal Affairs (DIA), the Ministry of Business, Innovation, and Employment (MBIE), and the Department of Conservation (DOC). Under the Bill, the DIA would offer particular services by Births, Deaths, and Marriages that currently require verification by statutory declarations to be verified in alternative, digitally appropriate, ways. The DIA would also allow photos of users stored in RealMe, an online government identity verification service, to be used for other means by government agencies only with the user’s consent. The Bill includes a proposal by MBIE to allow for businesses interacting with government agencies to appear remotely, as opposed to in person. This amends legislation that currently requires businesses to “appear before” government agencies in particular situations. The Bill also provides for notices to be delivered electronically to businesses in instances where paper based communication is currently mandatory. Under DOC’s recommendations, the Bill provides for the issuing of digital game bird hunting licenses and online voting for Fish and Game Council elections.

Housing Legislation Amendment Bill
This Bill was passed under urgency and has since been enacted. Refer to the Acts Assented section below.

Land Transport Amendment Bill
Type: Government
Member in charge: Hon Simon Bridges
This Bill proposes to amend the Land Transport Act 1998. It has five main components. Firstly, the Bill aims to implement a mandatory alcohol interlock sentence for certain drink driving offences, which is currently only imposed on a discretionary basis. The Bill would also impose a tighter regime for fare evasion on public transport that would empower enforcement officers to require passengers to provide evidence they have paid for a fare. In the event that no valid ticket is produced, the passenger would need to produce contact details, and, in some cases, disembark. The Bill also proposes to increase penalties for drivers who fail to stop for police. Additional updates to heavy vehicle registrations are also provided for in the Bill through changes to the vehicle dimension and mass VDAM Rule and corresponding regulations. Lastly, the Bill aims to streamline the regulatory framework for taxis, private hire services and shuttles by creating a class of small passenger service operators. The proposed single class seeks to remove a number of the current regulatory requirements relating to taxis, among others, and is said to enable operators to compete on an even footing and to provide a range of services that respond to market signals.

New Plymouth District Council (Waitara Lands) Bill
Type: Local
Member in charge: Jonathan Young                  
This Bill intends to address issues that have arisen over New Plymouth District Council owned land that was confiscated from Waitara hapū in 1865 (the Waitara Endowment Land). This land is currently held in six special categories. The Bill would firstly remove previous statutory restrictions on the Waitara Endowment Land in relation to the application of rents and sale proceeds such that the land can be used and income derived from it. The Bill would then set up a number of provisions that relate to the status of this Land. The Bill proposes to vest a portion of this Land in the Trustees of Te Kotahitanga o Te Atiawa (Trustees) and would classify this land as a recreation reserve. The Bill intends to impose a right of first refusal over a portion of the Land in favour of the Trustees. Additionally, the Bill would allow the lessees of the Waitara Endowment Land the right to purchase the Council's interest as lessor. The Bill also sets up a management framework for the funding and ongoing costs of the local authorities as a result of the proposed changes. To this effect, the Bill would establish a fund for future proceeds from the rent and sale of the Waitara Endowment Land.

Outer Space and High-altitude Activities Bill
Type: Government
Member in charge: Hon Steven Joyce
This Bill sets out a regulatory regime for space based activities that originate in New Zealand, due to a growing interest in this area. The Bill seeks establish a legal framework that would govern high-altitude activities and aims to create a licensing regime for launches, launch facilities, and a permit regime for payloads. International obligations are also built into the Bill, whereby provisions of the Technology Safeguard Agreement with the United States, the United Nations Registration Convention, Outer Space Treaty, Rescue Agreement, and Liability Convention are included. Under the Liability clauses, New Zealand would be liable for compensation for damage caused by its space-crafts on the surface of the earth, and liability for damage caused elsewhere would be fault-based. The Bill would implement enforcement provisions with monetary penalties. For example, the Bill would create offences for launching vehicles or operating launch facilities without permits. Under the Bill, it would also be an offence to supply false or misleading information for the purposes of an application.

Private International Law (Choice of Law in Tort) Bill
Type: Member’s
Member in charge: David Bennett
This Bill aims to provide guidance regarding which jurisdiction to use when there is a conflict of laws in particular tort cases. Clause 5 of the Bill sets out general principles: that jurisdictional characterisation for a claim is a matter for the courts; the applicable law should be used for determining the issues arising in a claim; and determining the applicable law excludes “choice of law” rules. The Bill would also abolish particular common law rules that are used to categorise actionability in tort claims. The Bill would then establish a “general rule” clause for characterising actionability. The general rule would clarify that the correct jurisdiction for tort claims is where the events constituting the tort occur, reflecting what is usually done. In cases where events that make up the claim occur in different jurisdictions, the relevant jurisdiction is where the most significant element or elements of those events occurred. An exception is when a cause of action concerns property. Here, the jurisdiction where the property was damaged would be used.


Bills awaiting first reading

Airport Authorities (Publicising Lost Property Sales) Amendment Bill
Companies (Annual Report Notice Requirements) Amendment Bill
Education (Charter Schools Abolition) Amendment Bill
Electoral Amendment Bill
Electronic Interactions Reform Bill
Land Transfer (Foreign Ownership of Land Register) Amendment Bill
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Our Work Our Future Bill
Outer Space and High-altitude Activities Bill
Private International Law (Choice of Law in Tort) Bill
Rates Rebate (Retirement Village Residents) Amendment Bill
Residential Tenancies (Safe and Secure Rentals) Amendment Bill


Bills defeated

Public Works (Prohibition of Compulsory Acquisition of Māori Land) Amendment Bill
Member in Charge: Catherine Delahunty
48 in favour: Labour 32; Green Party 14; Māori Party 2.
73 Against: National 59; New Zealand First 12; ACT 1; United Future 1.


Bills before Select Committee

Submissions open

Bill

Select Committee

Closing date for Submissions (2016)

Consumer Guarantees (Removal of Unrelated Party Lender Responsibility) Amendment Bill

Commerce

13 October

Education (Update) Amendment Bill

Education and Science

11 November

Enhancing Identity Verification and Border Processes Legislation Bill

Law and Order

26 October

Land Transport Amendment Bill

Transport and Industrial Relations

27 October

New Plymouth District Council (Waitara Lands) Bill

Māori Affairs

7 November

Rangitāne Tū Mai Rā (Wairarapa Tamaki nui-ā-Rua) Claims Settlement Bill

Māori Affairs

7 November


Submissions closed

Bill

Select Committee

Report due (2016)

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

Social Services

17 October

Contract and Commercial Law Bill

Justice and Electoral

14 December

Fire and Emergency New Zealand Bill

Government and Administration

5 January (2017)

Food Safety Law Reform Bill

Primary Production

16 February (2017)

Healthy Homes Guarantee Bill (No 2)

Government Administration

4 November

Local Government Act 2002 Amendment Bill (No 2)

Local Government and Environment

28 October

Maritime Crimes Amendment Bill

Foreign Affairs, Defence and Trade

5 January (2017)

New Zealand Intelligence and Security Bill

Foreign Affairs, Defence and Trade

18 February (2017)

Ngāi Te Rangi and Ngā Pōtiki Claims Settlement Bill

Māori Affairs

25 November

Ngatikahu ki Whangaroa Claims Settlement Bill

Māori Affairs

13 October

Resource Legislation Amendment Bill

Local Government and Environment

7 November

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

Justice and Electoral

5 November

Subordinate Legislation Confirmation Bill (No 2)

Regulations Review

23 February (2017)

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

Māori Affairs

13 October

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

Finance and Expenditure

15 December

Taxation (Business Tax, Exchange of Information, and Remedial Matters) Bill

Finance and Expenditure

11 February (2017)

Te Awa Tupua (Whanganui River Claims Settlement) Bill

Māori Affairs

25 November

Te Ture Whenua Māori Bill

Māori Affairs

11 November

Telecommunications (Property Access and Other Matters) Amendment Bill

Commerce

7 November

Trade (Anti-dumping and Countervailing Duties) Amendment Bill

Commerce

28 December

Trans-Pacific Partnership Agreement Amendment Bill

Foreign Affairs, Defence and Trade

12 November

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.

Births, Deaths, Marriages, and Relationships Registration (Preventing Name Change by Child Sex Offenders) Amendment Bill
Civil Defence Emergency Management Amendment Bill
Geographical Indications (Wine and Spirits) Registration Amendment Bill as reported by the Primary Production Committee
Kermadec Ocean Sanctuary Bill
Land Transfer Bill as reported by the Government and Administration Committee
Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill
Financial Assistance for Live Organ Donors Bill as reported by the Health Committee
New Zealand Horticulture Export Authority Amendment Bill as reported by the Primary Production Committee
Ngatikahu ki Whangaroa Claims Settlement Bill as reported by the Māori Affairs Committee
Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill
Public Collections and Solicitations (Disclosure of Payment) Bill
Social Security Legislation Rewrite Bill as reported by the Social Services Committee
Substance Addiction (Compulsory Assessment and Treatment) Bill as reported by the Health Committee
Wildlife (Powers) Amendment Bill as reported by the Local Government and Environment Committee


Bills awaiting third reading

Agricultural Compounds and Veterinary Medicines Amendment Bill
Building (Pools) Amendment Bill
Child Protection (Child Sex Offender Register) Bill
Commerce (Cartels and Other Matters) Amendment Bill
Drug and Alcohol Testing of Community-based Offenders, Bailees and Other Persons Legislation Bill (formerly the Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill)
Education Legislation Bill
Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill
Insolvency Practitioners Bill
Judicature Modernisation Bill
Māori Purposes Bill
Minimum Wage (Contractor Remuneration) Amendment Bill
Natural Health and Supplementary Products Bill (formerly the Natural Health Products Bill)
Ngāruahine Claims Settlement Bill
Papawai and Kaikokirikiri Trusts Amendment Bill
Rangitāne o Manawatu Claims Settlement Bill
Statutes Amendment Bill
Taranaki Iwi Claims Settlement Bill
Te Atiawa Claims Settlement Bill


Acts assented

Child Protection (Child Sex Offender Government Agency Registration) Act 2016
This Act establishes a Child Sex Offender Register for certain government agencies, including the Police, to monitor child sex offenders in the community. The Act applies to “registrable offenders” who have been convicted of particular child sex offences within the Crimes Act 1961 and sentenced to imprisonment or a non-custodial sentence subject to a registration order. Section 10 of the Act requires that the Register contain specific information about the offender, including their name and details of their offence and sentence. Those included on the register will be required to report personal information to the Commissioner on a periodic basis for a predetermined period depending on the type of offending. In addition, if a registered offender intends to travel away from his or her registered address within New Zealand for more than 48 hours, they must report certain travel details to the Commissioner.

Corrections (Electronic Monitoring of Offenders) Amendment Act 2016 (formerly part of the Electronic Monitoring of Offenders Legislation Bill)
This Act amends the Corrections Act 2004 by providing that electronic monitoring may be imposed as a condition of temporary release from custody or removal from prison. The Act also provides that prisoners who are employed by a prison manager, but outside a secure perimeter (whether in or outside a prison), may be subjected to electronic monitoring. Information obtained through the electronic monitoring may be used to verify that a prisoner has not escaped lawful custody and / or used as evidence in the instance that they have.

Evidence Amendment Act 2016
This Act amends the Evidence Act 2006 following a 2013 review by the Law Commission. The Act includes three key changes to the principal Act. The first change concerns evidence given by child witnesses. The Act provides alternative ways for a child witness to give evidence including through a video of their police video, through closed circuit television, or from behind a screen. Secondly, the Act changes the court process for complainants in sexual offence cases. Permission from a judge must be granted before a trial begins if a complainant is to be questioned on their sexual history with a person other than the defendant. Lastly, the Act introduces restrictions on the dissemination of video of evidence of vulnerable witnesses. Unless permission is granted from a judge, video evidence of a child complainant or a witness in a sexual or violent case will not be given to the defendant’s lawyer before it is offered in evidence.

Housing Legislation Amendment Act 2016
This Act amends the Housing Accords and Special Housing Areas Act 2013. Section 10 of the Act extends the date when special housing areas can be established by three years until September 2019. Special housing areas allow for fast-tracked development of housing. The Act also addresses an anomaly in the Principal Act whereby previously, if a proposed plan became operative in relation to a special housing area before the special housing area became operative, that variation would be treated as withdrawn. The Act amends section 75 of the principal Act to allow plan variations to proposed plans in respect of special housing areas to be determined regardless of whether the proposed plan has become operative as a whole. The Act also amends the Housing Act 1995 so that offer-back obligations to former owners under the Public Works Act 1981 do not apply (and have never applied) to the disposal of state housing by sale or lease.

Parole (Electronic Monitoring of Offenders) Amendment Act 2016 (formerly part of the Electronic Monitoring of Offenders Legislation Bill)
This Act amends the Parole Act 2002 by providing that whereabouts conditions imposed on offenders who are subject to electronic monitoring can only include residential restrictions and conditions that relate to the prohibition of entering or remaining in particular places or areas. The Act adds to electronic monitoring specifications in section 15A of the Principal Act that offenders must comply with written instructions from probation officers that are reasonably necessary for effectively administrating electronic monitoring.

Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016 (formerly part of the Electronic Monitoring of Offenders Legislation Bill)
This Act amends the Sentencing Act 2002 to allow the courts to impose electronic monitoring as a special condition of release for short term prison sentences of up to two years. In order to do so, the Court must have regard to the opinion of the chief executive of the Department of Corrections in a pre-sentence report. The Act also allows electronic monitoring to be imposed when sentencing an offender to intensive supervision.

Smoke-free Environments (Tobacco Standardised Packaging) Amendment Act 2016
This Act amends the Smoke-free Environments Act 1990 to introduce a new standardised packaging regime for tobacco products. The Act provides for the establishment of regulations that standardise the way tobacco products are packaged and the quantities in which they are sold. The Act inserts a new section 39A into the principal Act which requires that tobacco packages will only contain the brand and variant name, as well as specific health warnings. The Act requires that the rest of the package will be taken up by a “drab brown” standard colour. The Regulations will also include requirements in relation to the size of a tobacco package, the weight of products, and the quantity of cigarettes in a package. The regulations to be imposed under the Act are currently being drafted by the Ministry of Health but have received public consultation. They will come into force via an Order in Council. 


Legislative instruments

Climate Change (Eligible Industrial Activities) Amendment Regulations (No 2) 2016
Climate Change (Forestry Sector) Amendment Regulations 2016
Climate Change (Stationary Energy and Industrial Processes) Amendment Regulations 2016
Climate Change (Synthetic Greenhouse Gas Levies) Amendment Regulations 2016
Commodity Levies (Eggs) Order 2016
Customs Import Prohibition (Southern Bluefin Tuna) Order 2016
Education (Tertiary Education—Criteria Permanent Residents Studying Overseas must Satisfy to be Domestic Students) Regulations 2016
Financial Markets Conduct (Designation of Restricted Schemes) Order 2016
Financial Markets Conduct (Licensed Independent Trustees of Restricted Schemes) Exemption Notice 2016
Financial Markets Conduct (Licensed Independent Trustees of Restricted Schemes) Exemption Notice 2016
Fisheries (Declaration of Ōtākou Mātaitai Reserve) Notice 2016
Fisheries (Notification of Ōtākou Mātaitai Reserve and Tāngata Tiaki/Kaitiaki) Notice 2016
Fisheries (Notification of Tāngata Kaitiaki/Tiaki for Area/Rohe Moana of Ngāti Kuta-Patukeha) Notice (No 2) 2016
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Area/Rohe Moana of Te Rūnanga o Makaawhio) Notice 2016
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Area/Rohe Moana of Te Rūnanga o Makaawhio) Notice 2016
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Area/Rohe Moana of Te Rūnanga o Koukourārata) Notice 2016
Fisheries (Notification of Tāngata Tiaki/Kaitiaki for Mātaitai Reserve at Port Levy (Potiriwi)/Koukourārata) Notice 2016
Fisheries (Umupuia Beach Temporary Closure) Notice 2016
Imports and Exports (Asbestos-containing Products) Prohibition Order 2016
Major Events Management (New Zealand Lions Series 2017) Order 2016
Public Finance (Mercury NZ Limited) Order 2016
Public Finance (Mercury NZ Limited) Order 2016
Resource Management (Network Utility Operations) Regulations 2016
Social Security (Extension of Young Persons Services and Remedial Matters) Amendment Act 2016 Commencement Order 2016
Sports Fish Licences, Fees, and Forms Notice 2016
Sports Fish Licences, Fees, and Forms Notice 2016
Student Allowances Amendment Regulations (No 2) 2016


In the week ahead

What’s coming up in the House

When the House resumes on Tuesday 11 October the Government will look to complete the committee stages of a number of bills on the Order Paper and the third reading of what was formerly the Judicature Modernisation Bill, presently on the Order Paper as items 24 to 46, starting with the Senior Courts Bill.


In the courts

Court of Appeal rules fluoridation lawful

The Court of Appeal last month released its decision in New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, holding that fluoridation of water supply by a local authority is lawful.

The Court heard three appeals brought by New Health, the principal appeal relating to the Council’s proposed fluoridation of water supplies in Patea and Waverley. New Health challenged a decision of Rodney Hansen J in the High Court, which found that the proposed fluoridation was not a breach of section 11 of the New Zealand Bill of Rights Act 1990. Section 11 protects the right to refuse to undergo medical treatment. New Health also challenged the Judge’s finding that the Local Government Act 2002 (LGA) and the Health Act 1956 gave local authorities a mandate to fluoridate water.

In dismissing the appeal, the Court agreed with Rodney Hansen J’s finding that section 11 did not extend to public health measures, on the basis that the plain meaning of the words and Parliamentary and international materials did not support the view that drinking fluoridated water could be described as “undergoing medical treatment”. In order to undergo medical treatment, something must be done to a patient in a therapeutic setting. Further, New Health's interpretation would lead to a conflict between the rights of the individual and those of the wider public.

The Court also agreed with Rodney Hansen J’s decision in relation to the LGA and Health Act. When the LGA was enacted, a number of local authorities were already fluoridating water under previous legislation; by choosing not to prohibit fluoridation in the LGA, the Court agreed with the Judge’s finding that Parliament must have meant for the activity to be continued. Similarly, the specific contemplation of fluoridation by the Select Committee during a 2008 amendment to the Health Act led the Court to conclude that Parliament must have intended to permit fluoridation if it did not explicitly prohibit it at that stage. 

In the second and third appeals New Health appealed against the finding of Collins J in the High Court that fluorides were not medicines for the purposes of the Medicines Act 1981 and challenged a decision of the Ministry of Health to pass a regulation to the same effect, arguing that this was designed to prevent New Health exercising its right of appeal. However, the Court dismissed the appeals finding that the regulation was properly made and that it was not improper to pass a regulation to achieve legal certainty.

South Taranaki District Council received assistance in defending the appeal from the Ministry of Health, as it was a matter of national interest.

New Health has indicated that it will likely seek leave to appeal to the Supreme Court. A copy of the judgment is available here.


Supreme Court finds prisoners detained unlawfully

The Supreme Court’s recent judgments in Booth v R and Marino v The Chief Executive of the Department of Corrections [2016] NZSC 127 held that the Department of Corrections has been miscalculating prisoners’ sentences since 2003.

The decision concerned an appeal brought by two prisoners regarding the correct interpretation of sections 90 and 91 of the Parole Act 2002. The issue before the Court was whether the Department and lower courts had correctly factored in time spent pre-sentence in remand in calculating parole and release dates. The Supreme Court unanimously held that the Act was being interpreted incorrectly such that prisoners were not been given credit for time spent in remand, and they were, therefore, being unlawfully held for too long.

The decision is predicted to have affected as many as 30 to 40 prisoners per month, dating back to 2003. Corrections Minister Judith Collins has indicated to the media that the Government is considering a law change, and that compensation for affected prisoners was unlikely. Ewen Marino, who brought the appeal in Marino v The Chief Executive of the Department of Corrections, this month filed proceedings in the High Court seeking compensation for the additional time spent behind bars. Mr Marino said that he hoped a positive outcome in his case would make it easier for others to seek compensation.

A copy of the judgment can be read here.


In trade

Tariff concessions

Applicant

Proposed tariff concession

Tariff item

Closing date for objections (2016)

Rixen NZ Limited

Water ski cableway system, of a kind designed to tow riders around a course.

8428.90

11 October

BCS Group Limited

Cross belt sorter, fully automated, of a kind designed to sort parcels from inductions lines into different outlets (chutes).

84.28

11 October

Horticultural Innovations Limited

Plastic bin, of polypropylene, high pressure injection moulded, nestable, capacity between 450 to 730 litres, presented disassembled.

3923.10.11

18 October

In consultation

New

Who

What

By when (2016)

Accident Compensation Corporation

Increase of payments by 14.9% in the Injury Prevention, Rehabilitation, and Compensation (Review Costs and Appeals) Amendment Regulations 2010.

31 October

Commerce Commission

Investigation into whether resale voice services supplied by Spark New Zealand Limited should be omitted from Schedule 1 of the Telecommunications Act.

17 October

Department of Conservation

 

Intention to grant a 60 year concession to Ruapehu Alpine Lifts Limited for a licence to occupy Turoa Ski Area, Ruapehu.

4 November

Intention to grant a concession to Raglan Golf Course Incorporated for a lease over the Recreation Reserve.

14 November

Intention to grant a concession to Manaaki Group Holdings Limited for a lease/licence to occupy part of Whirinaki Te-Pua-a-Tāne Conservation Park for the purposes of a glamping business.

14 November

Intention to grant a lease, licence, and easement concession to Westpower Limited to construct and operate a run of the river hydro scheme on the Waitaha River on the West Coast. 

14 November

Environmental Protection Authority

Proposal that shifts the requirements for explosives import certificates from the Hazardous Substance (Tracking) Regulations 2001 into the Importers and Manufacturers Information Notice 2015.

14 October

Proposal for classification, labeling, safety data sheets and packaging regarding the way hazardous substances are managed.

14 October

Proposed changes to Hazardous Substances Forms and Information designed to improve workplace health and safety.

14 October

Trans-Tasman Resources Limited application for marine consents and marine discharge consents to extract and process iron sand within the South Taranaki Bight as set out in the Public Notice.

14 October

Proposal to add new persistent organic pollutants to Schedule 2A of the Hazardous Substances and New Organisms Act 1996.

27 October

Application to release two insects as biological control agents for the weed Giant Reed.

3 November

Food Standards Australia and New Zealand

Application to permit the use of oryzin (protease) from Aspergillus melleus as an enzyme for use in baking, flavouring production and dairy, egg, meat, fish, protein and yeast processing.

2 November

Inland Revenue Department

Discussion document for addressing hybrid mismatch arrangements.

17 October

Draft paper on whether a racing syndicate or partnership, whose activities are limited to the ownership (or leasing) of one or more horses for racing, can be registered for GST.

9 November

Draft paper on the deductibility of feasibility expenditure.

9 November

MedSafe

Change to warning statements on labels of OTC loratadine and desloratadine medicines.

11 November

Ministry for Primary Industries

Draft import health standard for fresh onion for consumption.

14 October

Proposed changes to phytosanitary measures when importing Citrus nursey stock from all countries.

21 October

Feedback on the performance of the CRA3 (Gisborne) rock lobster fishery.

21 October

Review of management measures for the CRA5 (Canterbury/Marlborough) rock lobster fishery.

21 October

Draft import health standard for importing used equipment associated with animals or water.

28 October

Draft import health standard for Fresh Salacca for Consumption.

10 November

Draft import health standard for Fresh Rambutan for Consumption.

11 November

Ministry of Business, Innovation and Employment

Proposal to amend transitional provisions of the Patents Act 2013 relating to divisional patent applications.

14 October

Review of the Regulations under which clients are paid a contribution to their costs associated with reviews.

31 October

Proposals for Regulations under the Building (Earthquake-prone Buildings) Amendment Act 2016.

15 December

Ministry of Education

Education (Tertiary Education and Other Matters) Amendment Bill consultation paper.

14 October

Ministry of Health

 

Consultation document: Code of Practice for Diagnostic and Interventional Radiology.

28 October

New Zealand Productivity Commission

Draft Report on new models of tertiary education.

21 November

Pharmac

Proposal to delist tramadol hydrochloride oral drops 100 mg per ml, and instead list a 10 mg per ml strength of tramadol hydrochloride oral solution for use in DHB hospitals.

20 October

Draft tender list of intravenous fluid bags and a range of irrigation solutions to be included in upcoming national procurement activity.

27 October

Reserve Bank

Proposed Dashboard approach to quarterly disclosure by locally incorporated banks consultation paper.

1 December

Standards New Zealand – Joint Standards

Oriented PVC pipes for pressure applications – the Standard is to specify the general aspects of pipes and joints made of oriented unplasticized poly(vinyl chloride) (PVC-O) for piping systems intended to be used underground or above-ground where not exposed to direct sunlight, for water mains and for services, for pressurized sewer systems and for irrigation systems: DR2 AS NZS 4441:2016.

8 November

Modified PVC pipes for pressure applications – the Standard is to outline minimum requirements for the manufacture and performance of PVC-M pipes for pressure applications for use by manufacturers, specifiers and purchasers of these products: AS/NZS 4765:2016 CP. 

8 November

Methods for sampling and analysis of ambient air Method 18: Measurement of road tunnel air quality – the standard is to provide regulatory and testing bodies with standard methods for continuously monitoring air in road tunnels for air velocity, carbon monoxide (CO), nitric oxide (NO) and nitrogen dioxide (NO2) concentrations and visibility: AS/NZS 3580.18:2016.

16 November

PVC pipes and fittings for pressure applications – the standard is to provide a standard specification for manufacturers and purchasers of PVC pipe and fittings for pressure applications: AS/NZS 1477:2016.

24 November

Current

Who

What

By when (2016)

Commerce Commission

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

11 November

Department of Conservation

National Strategy for Environment Education for Sustainability.

10 October

Draft Te Hauturu-o-Toi/Little Barrier Island Nature Reserve Conservation Management Plan.

11 October

Proposal to dispose of conservation land near Tunnel Rocks Scenic Reserve.

14 October

Review of the Management Plan for the Westland Tai Poutini National Park.

21 October

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

21 October

 

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

28 October

Financial Markets Authority

Consultation on the Financial Market Authority’s document, ‘A guide to the FMA's view of conduct’.

31 October

Ministry for Primary Industries

Proposed amendment to Import Health Standard BNZ-IMP-TUBER: Importation into New Zealand of specified fresh and frozen Tuber species (truffles).

14 October

Ministry of Foreign Affairs and Trade

Call for submissions from New Zealand exporters to the United Kingdom following the referendum to leave the European Union.

14 October

International climate change negotiations and issues.

ongoing

Ministry of Health

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

31 October

Pharmac

Implementation of Trans Pacific Partnership Agreement provisions.

28 October

Standards New Zealand – Joint Standards

 

 

Amendment to safety standards relevant to gate valves for waterworks purposes – AS/NZS 2638.1.2011 Amd 1:2016 and AS/NZS 2638.2:2011 Amd 1:2016.

18 October

Amendment to safety standard for approval and test specification – electrical portable device outlet devices. DR AS/NZS 3105:2014 A1:2016.

19 October

Amendment to safety standard for Edison screw lampholders (IEC 60238, Ed. 8.2 (2011) MOD). DR AS/NZS 60238:2015 A2:2016.

19 October

Amendment to safety standard for Bayonet lampholders (IEC 61184, Ed. 3.1 (2011) MOD) DR AS/NZS 61184:2015 A2:2016.

19 October

Safety standards for reconstituted wood-based panels – methods of testing. Objectives of this revision are to update test methods, consolidate test method standards and adopt ISO versions of test methods where appropriate – DR AS/NZ 4266.1:2016 and DR AS/NZS 4266.2.2016.

1 November

Safety standard to provide manufacturers, designers, certifiers and users of glued laminated structural timber, with minimum product performance requirements that will facilitate the safe use of glued laminated timber in structures. DR AS/NZS 1328:2016.

1 November

Amendment to safety standard for the storage and handling of LP Gas. DR AS/NZS 1596:2016.

1 November

Safety standard to specify performance requirements for the manufacture and application of particleboard. DR AS/NZS 1859.1:2016.

1 November

Safety standard to specify the product requirements for three types of dry process fibreboards – ultra-low density, low density, medium density – for use under two service conditions – dry (STD) and moisture resistant (MR) – and as described under Clause 5. DR AS/NZ 1859.2:2016.

1 November

Safety standard to provide performance requirements and specifications for the manufacture and application of decorative overlaid wood panels. DR AS/NZS 1859.3:2016.

1 November

Safety standard to specify performance requirements in the manufacture and application of particleboard flooring. DR AS/NZS 1860.1:2016.

1 November

Safety standard to provide best practice requirements for fabrication and erection of structural steel members, components and structural assemblies used for load-carrying purposes in buildings, bridges and other structures. DR AS/NZS 5131:2016.

2 November

Safety standard for safety of toys – determination of total concentration of certain elements in toys. DR AS/NZS 8124.12.2016.

2 November

Safety standard to provide manufacturers, installers and designers with the requirements for the design, manufacture and proper implementation of scaffold decking components. DR AS/NZS 1577:2016.

2 November

Safety standard to provide requirements intended to reduce the risks to children when finger paints are used as intended or in a foreseeable way, bearing in mind the behaviour of children. DR AS/NZS 8124.7:2016.

2 November


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

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