23 March 2010

In this edition:

MATTERS OF OPINION

Back in the CCPR
Justice Minister, Simon Power, was in New York last week, presenting the Government's now ritualised response to questions posed by the UN Human Rights Committee on New Zealand's adherence to the International Covenant of Civil and Political Rights (ICCPR). more...

IN POLITICS

The Year of Living Dangerously?
Surprised by polling showing a voter appetite for a more aggressive reform agenda, National plans to advance its agenda well before the imperatives of election year put a brake on its ambition. more...


PROGRESS OF LEGISLATION

IN THE WEEK AHEAD

IN COMMITTEE

 

IN THE COURTS

IN OTHER NEWS

IN CONSULTATION

A Matter Of Opinion

Back in the CCPR

Justice Minister, Simon Power, was in New York last week, presenting the Government's now ritualised response to questions posed by the UN Human Rights Committee on New Zealand's adherence to the International Covenant of Civil and Political Rights (ICCPR).

The Committee has in the past made its concerns well known about the adequacy of New Zealand Bill of Rights Act as an instrument of rights protection.  Given the increasing frequency with which legislation is passed, despite negative Bill of Rights Act 'vets' by the Attorney-General, doubtless the Committee's tutting displeasure will be visited upon us once again.

As a matter of form of course no 'liberal' democratic Government is going to hold itself out in the 'could do better' category.  Whatever personal sensibilities Power may have about the adequacy or otherwise of the Bill of Rights Act, he was always going to toe the official line: It's all just wonderful thanks very much.

The reality of course is different and increasingly so.  The conflicts in the role of the Attorney-General as whistle blower and Attorney-General as member of the Executive are not easily reconciled and vary with the competence and integrity of the incumbent.  Also discomforting is the fact that more and more legislation is proceeding through urgency or with the often doubtful benefit of substantive Supplementary Order Papers, which typically do not receive the benefit of the Attorney-General's review.  And also, as the Electoral Finance Act 2007 showed, the Bill of Rights Act is something the Attorney-General can get away with ignoring altogether.

It has been 25 years since the notion of a Bill of Rights was first mooted and 20 years since its enactment.  This and the fact that we will receive in the next few months yet another report card saying we could do better, suggest that it may be timely to have a look at things and see what steps we might take about doing so.

In Politics

The Year of Living Dangerously?

Surprised by polling showing a voter appetite for a more aggressive reform agenda, National plans to advance its agenda well before the imperatives of election year put a brake on its ambition. 

Productivity and innovation have already been telegraphed as key areas of focus, along with the taxation of residential investment property.  But these are the hardy annuals of the piece ??? Instead look for further action on Auckland infrastructure, ultrafast broadband, taxation, a foray into the no-go areas of welfare reform and a surprising willingness to take on the teachers and the various institutional bastions at primary, secondary and tertiary levels.

Underscoring all this is the Prime Minister's evident nonchalance about buying a political fight.  But it has its downside.  Wholesale kite flying and a 'will-we-won't-we' approach to policy reform doesn't play well.  Key can get away with it, but not his lieutenants as the hitherto faultless Ministerial wunderkind, Stephen Joyce, demonstrated when broaching the costs to the taxpayer of profligate day-tripping by Auckland's pensioners.

Some kites just don't need to be flown.  Poking the Greys with a stick, at the same time handing Winston Peters a ready opportunity to splutter his outrage and remind people who came up with the Goldcard in the first place is not smart politics.  It is also a sign that National may be too ready to trade on Key's affable "aw shucks folks" manner.  

This is something that Bill English seems to have grasped if his colleagues have not.  Whatever lingering sense of leadership ambition there may be about him, English provides a necessary balance to Key.  His relative rigour and longevity in the political game make him more attuned than most of his colleagues to public expectation of an effective Government.  He is also well aware of the exposure to Opposition attack, particularly when the kite-flying runs counter to the position of the Government's support parties.  Hopefully for him and for National, the question of his housing allowance has been put to bed.  Hopefully too Joyce's experience will be a lesson learned.

Progress Of Legislation

New Bills

Tariff (Malaysia Free Trade Agreement) Amendment Bill
Type of Bill: Government
Member in Charge: Hon Tim Groser

A Bill to amend the Tariff Act 1988 to implement the Malaysia-New Zealand Free Trade Agreement.  The Malaysia FTA will also be implemented by regulations. 

Lawyers and Conveyancers Amendment Bill
Type of Bill: Government
Member in Charge: Hon Nathan Guy

This Bill would implement Government policy, reverting the title back to Queen's Counsel from Senior Counsel.  It would also make minor amendments to the Lawyers and Conveyancers Act 2006. 

Bills To Select Committee

Christ's College (Canterbury) Amendment Bill

Member's Bills Defeated

Mental Health (Compulsory Assessment and Treatment) Amendment Bill
Resource Management (Requiring Authorities) Amendment Bill

 

Open for submissions

Bill

Select Committee

Submissions close (2010)

Report due (2010)

Child and Family Protection Bill

Justice and Electoral

1 April

11 August

Education (Freedom of Association) Amendment Bill

Education and Science

31 March

28 May

Financial Service Providers (Pre-Implementation Adjustments) Bill

Commerce

25 March

4 May

 

Submissions not yet called

Christ's College (Canterbury) Amendment Bill
Land Transport (Driver Licensing) Amendment Bill
Marine Reserves (Consultation with Stakeholders) Amendment Bill

Submissions closed

Bill

Select Committee

Report due (2010)

Animal Welfare Amendment Bill

Primary Production Committee

30 April

Arms Amendment Bill (No 3)

Law and Order

28 May

Electoral (Administration) Amendment Bill

Justice and Electoral

27 April

Electricity Industry Bill

Finance and Expenditure

15 June

Fair Trading (Soliciting on Behalf of Charities) Amendment Bill

Commerce

9 June

Franklin District Council (Contribution to Funding of Museums) Amendment Bill

Local Government and Environment

30 April

Human Assisted Reproductive Technology (Storage) Amendment Bill

Health

8 June

Insurance (Prudential Supervision) Bill

Finance and Expenditure

8 June

Limitation Bill

Justice and Electoral

2 April

Local Government (Auckland Law Reform) Bill

Auckland Governance Legislation

4 May

Marine Reserves Bill

Local Government and Environment

30 December

Patents Bill

Commerce

30 March

Private Security Personnel and Private Investigators Bill

Justice and Electoral

30 March

Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill

Local Government and Environment

17 June

Sale and Supply of Liquor and Liquor Enforcement Bill

Justice and Electoral

30 June

Sale of Liquor (Objections to Applications) Amendment Bill

Social Services

30 June

Search and Surveillance Bill

Justice and Electoral

1 May

Sentencing and Parole Reform Bill

Law and Order

30 March

Sustainable Biofuel Bill

Local Government and Environment

29 July

Statutes Amendment Bill

Government Administration

1 April

Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver, and Remedial Matters) Bill

Finance and Expenditure

8 June

Waikato-Tainui Raupatu Claims (Waikato River) Settlement Bill

Māori Affairs

30 June

 

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. 

Antarctica (Environmental Protection: Liability Annex) Amendment Bill
Aquaculture Legislation Amendment Bill (No 2)
Carter Observatory Act Repeal Bill
Children, Young Persons, and Their Families Amendment Bill (No 6)
Dairy Industry Restructuring (Raw Milk Pricing Methods) Amendment Bill
Dog Control Amendment Bill (No 2)
Electricity (Continuance of Supply) Amendment Bill
Infrastructure Bill
Māori Trustee and Māori Development Amendment Bill
Motor Vehicle Sales Amendment Bill
Ngāti Apa (North Island) Claims Settlement Bill (Report of the Māori Affairs Committee)
Oaths Modernisation Bill
Privacy (Cross-border Information) Amendment Bill
Public Health Bill
Radio New Zealand Amendment Bill
Rail Network Bill
Regulatory Improvement Bill
Regulatory Responsibility Bill
Reserves and Other Lands Disposal Bill
Residential Tenancies Amendment Bill
Student Loan Scheme (Exemptions and Miscellaneous Provisions) Amendment Bill
Therapeutic Products and Medicines Bill
Trade Marks (International Treaties and Enforcement) Amendment Bill
Trade (Safeguard Measures) Bill
Trustee Amendment Bill
Waka Umanga (Māori Corporations) Bill
Whanganui Iwi (Wanganui (Kaitoke) Prison and Northern Part of Wanganui Forest) On-account Settlement Bill (Report of the Māori Affairs Committee)

Bills Awaiting Third Reading

Cultural Property (Protection in Armed Conflict) Bill
Education Amendment Bill
Gambling Amendment Bill (No 2)
Māori Commercial Aquaculture Claims Settlement (Regional Agreements) Amendment Bill
Unit Titles Bill

SOPs Passed

SOP 108 - Judicial Matters Bill
SOP 109 - Judicial Matters Bill

Bills Awaiting Assent

Appropriation (2008/09 Financial Review) Bill
Bills divided from Judicial Matters Bill:

Acts Assented

Accident Compensation Amendment Act 2010
This Act changes the name of the principal Act to "Accident Compensation Act 2001".  It extends date for fully funding residual claim liabilities from 2014 to 2019 and also makes changes to the funding of the ACC scheme, creating a separate motorcycle safety levy.  The Act allows for experience rating and risk sharing in relation to levy rates in the Work Account.  There are also measures to assist with cost savings, such as disentitlement provisions. 

Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010
This Act extends the Youth Court's jurisdiction to cover 12 and 13 year old offenders.  It allows for a dual pathway for serious child offenders, so Youth Court judges can decide that it is more appropriate for the child to be dealt with as a care and protection matter by the Family Court.  It also widens the range of sentencing orders available to judges, which include requirements to attend a rehabilitative or education programme such as a parenting programme, or an alcohol and drug rehabilitation programme.   

Student Loan Scheme (Exemptions and Miscellaneous Provisions) Amendment Act 2010
This Act introduces two additional exemptions to the rule that borrowers are required to be present in New Zealand for 183 or more consecutive days to qualify for an interest-free loan.  It also extends the interest free student loan scheme to people residing in Niue, the Cook Islands, Tokelau, or the Ross Dependency and students enrolled with a New Zealand education provider but studying overseas.  In addition, it makes technical amendments to the ways in which student loans can be repaid.

Regulations

Building (Designation of Building Work Licensing Classes) Order 2010
Building Practitioners (Licensing Fees and Levy) Regulations 2010
Building Practitioners (Register of Licensed Building Practitioners) Regulations 2010
Deposit Takers (Funding Conduits) Exemption Notice 2010
Electricity (Safety) Regulations 2010
Electricity Amendment Act 2006 Commencement Order 2010
Fisheries (Declaration of New Stock Subject to Quota Management System) Notice 2010
Land Transport (Certification and Other Fees) Amendment Regulations 2010
Land Transport (Driver Licensing) Amendment Rule 2010
Land Transport (Offences and Penalties) Amendment Regulations 2010
Land Transport (Traction Engine Safety) Regulations Revocation Order 2010
Plumbers, Gasfitters, and Drainlayers Act Commencement Order 2010
Plumbers, Gasfitters, and Drainlayers Regulations 2010
Registered Architects Amendment Rules 2010
Takeovers Code (Biovittoria Limited) Exemption Amendment Notice 2010
Takeovers Code (The Warehouse Group Limited) Exemption Notice 2010
Traffic Amendment Regulations 2010
War Pensions (Rates of Pensions, Lump Sum Payments, and Allowances) Order 2010
War Pensions Amendment Regulations 2010

In The Week Ahead

The House is sitting for another two weeks before rising for Easter.  Next week the Government intends to advance the Māori Commercial Aquaculture Claims Settlement (Regional Agreements) Amendment Bill and the Infrastructure Bill.  The Securities Trustees and Statutory Supervisors Bill and other Bills may also receive their first reading, as this week the Government has focused on passing Bills further advanced through the legislative process.

In Committee

Auckland Local Governance Committee
The Committee has been meeting in Auckland to hear submissions on the Local Government (Auckland Law Reform) Bill, the final Bill to implement the new super city Auckland Council.  The main points of discussion that arose were:

Finance and Expenditure Committee
The Committee has been hearing submissions from the Reserve Bank on the Monetary Policy Statement. The Committee has also been hearing further submissions on the Insurance (Prudential Supervision) Bill.  The main points of concern that arose were:

Māori Affairs Committee
The Committee has received over 2000 submissions on its Inquiry into the Tobacco Industry in Aotearoa and the Consequences of Tobacco Use for Māori.  Some key points that have arisen are:

In Other News

Development of a Natural Health Products Bill

The Ministry of Health is consulting on the development of a new law regulating natural health products.

Key elements of the proposed scheme are requirements for:

The consultation document can be found here.  Submissions close on 17 May.

Crown Research Institutes: Less Competition, More Efficiency?

The Crown Research Institute (CRI) Taskforce was established in September 2009 at the request of the Prime Minister.  Its report, entitled "How to enhance the value of New Zealand's investment in Crown Research institutes", proposes changes to CRI funding, ownership and governance arrangements, including a reduction in the proportion of contestable funds for research, science and technology projects undertaken by CRIs.

Whilst providing incentives for innovation and market entry, excessive reliance on contestable funding has resulted in CRIs adopting short-term "bank balance" outlooks.  To better capture long-term economic, social and environmental efficiency gains, the report recommends that CRIs receive direct long term funding to achieve their "Core Purpose".  This purpose would be set out by the Government through dialogue with CRIs and their key stakeholders, and would recognise the "distinctive role" of each CRI relative to other research organisations, including universities and private research organisations.

Accountability for delivering this Core Purpose would be achieved through more onerous disclosure standards, and measured through both financial and non-financial standards, including "scientific excellence" and "technology transfer" to the private sector.  For the latter, CRIs would have a responsibility to "move the intellectual property from their balance sheet into the private sector as soon as possible", and to build stronger relationships with New Zealand businesses.  Direct commercialisation ventures would be discouraged.  However, the report provides no detail on which firms in the relevant sector will receive this valuable intellectual property, or how such firms will be selected.

The report recommends that the Government announces the changes it intends to make as soon as possible after considering the report, and nominates a group of officials to begin implementing those changes.  A two step transition to a less competitive funding environment is suggested.

Copies of the report are available here.  There is no opportunity to make submissions.

Local Government Commission Determinations on Auckland Council Boundaries and Representation Arrangements

The Local Government Commission was tasked with determining the new Auckland Council's boundaries and representation arrangements prior to its inaugural elections in October 2010.  A preliminary report on the issue was released by the Commission in November last year, and received almost 700 submissions.

The Commission's final determinations, released on 11 March, specify the number, names and boundaries of the wards to receive council representation, the number and composition of local boards that will share decision-making with the Council, the Council's exact northern and southern boundaries and arrangements for parts of the current Auckland region that will not be part of the Auckland Council.  Changes to the Commission's original proposals include an additional ward and two further local boards.  There will be 13 wards in total, seven of which will be represented by two councillors each, and 21 local boards, each with between five and nine members.

The Commission's determinations on this matter are final, and are available here.  However, the decisions are separate to the Third Bill relating to the Auckland Council, which is currently before Select Committee with a report due on 4 May.  Moreover, submissions can still be made on the role and functioning of local boards and council controlled organisations (see below).

Auckland Transition Agency Discussion Paper on Local Boards

While the Local Government Commission has determined which local boards will exist, the Auckland Transition Agency has proposed how they will operate.  The Agency's discussion document, released on 26 February, proposes to allocate significant responsibilities to local boards.

In particular, local boards would oversee local facilities, such as community parks, halls, swimming pools, sports fields and libraries.  Additionally, local programmes and activities (such as local events, community arts and culture programmes, and community advisory services) and local services (such as enhanced rubbish removal, graffiti control and cleaning programmes for the local area) would be overseen by local boards.  Accordingly, the document proposes that "for many Aucklanders, local boards will be the face of local government".

The Transition Agency does not have authority to allocate regulatory decision-making powers to local boards.  Nonetheless, the discussion document suggests that decisions on regulatory issues such as liquor control, location and signage for brothels, and local restrictions on activity in public places could be delegated to local boards by the Auckland Council (following its establishment).  Local boards could also be empowered to propose local bylaws and, in time, targeted rates.

Copies of the report (and details on how to submit) are available here.  Submissions close on 26 March 2010.  Detailed responsibilities will then be allocated to local boards and initial budgets determined prior to transition to the new Council on 1 November 2010.

Auckland Transition Agency Discussion Paper on Council Controlled Organisations

This discussion document, released by the Auckland Transition Agency on 1 March 2010, considers the structure of Auckland's proposed Council Controlled Organisations ("CCOs").  Extensive use of CCOs was proposed by the Royal Commission in March 2009, approved in principle by Cabinet late last year, and is further provided for in the Third Bill currently before Select Committee.

The five CCOs considered in the discussion document are Council Investments, Economic Development, Tourism and Events, Major Regional Facilities, Property Holdings and the Waterfront Development Agency.  The two most controversial proposed CCOs - the Auckland Transport Agency and Watercare - are considered in other published and pending ATA reports.

The discussion document outlines the accountability mechanisms between the Council and CCO boards, proposes a governance structure, and sets out the assets and activities associated with each proposed CCO.  The document stresses the advantages of business sector involvement in the governance of CCOs through board appointments.  In lieu of democratic representation, the document highlights existing accountability mechanisms between CCO boards and the Council under the Local Government Act, and the additional accountability mechanisms provided for in the Third Bill.  Under the proposals, Auckland Council would delegate its monitoring and assessment role to a dedicated Council Committee, and CCOs would be required to take account of the views expressed by local boards.

Copies of the report (and details on how to submit) are available here.  Submissions close on 26 March 2010.  The number, nature and activities of CCOs will be finalised for Cabinet approval in late April, before transition to the new Council occurs on 1 November 2010.

Personal Grievance Process Review

The Department of Labour has released a discussion document as part of its review of the personal grievance system operating under the Employment Relations Act 2000 (ERA).  The review responds to "problems" that have been identified by key stakeholders and the public, or have been the subject of recent media commentary.  The review aims to consider whether the personal grievance system:

The review will also address related issues in respect of the three "employment institutions": mediation services, the Employment Relations Authority, and the Employment Court.

Where improvements are required, the review will consider whether these should be addressed by awareness raising and information provision or whether regulation and legislative changes are required.

Copies of the discussion document (as well as the review's terms of reference and review response forms) are available here.  Submissions close on 31 March 2010.

Digital Intellectual Property Proposals

As part of developing a proposed pluri-lateral Anti-Counterfeiting Trade Agreement (ACTA), Commerce Minister Simon Power is calling for submissions on a range of intellectual property proposals in the digital arena. 

The proposed ACTA is being developed by New Zealand and a number of trading partners in response to the increase in global trade of counterfeit goods and pirated copyright protected works.  It aims to set a new, higher benchmark for intellectual property rights enforcement that countries can voluntarily join. 

An MED invitation for submissions released this month provides "background information on issues that arise in relation to the digital provisions" of the ACTA, including:

The MED's invitation for submissions is available here.  Submissions close on 31 March 2010.

In Consultation

New

Who

What

By when… (2010)

Ministry of Agriculture and Forestry

Regulations for exemptions from the ETS for deforestation of pre-1990 forest land with tree weeds

29 March

Auckland Transition Agency

Council-controlled organisations under the new Auckland Council

26 March

Local boards under the new Auckland Council

26 March

Biosecurity New Zealand

Draft Containment Standard for New Organisms held in Zoos

9 April

Draft Code of Welfare for Pigs

16 April

Draft Import Health Standard for turkey meat preparations from the European Union

21 April

Department of Building and Housing

Options for reform of the Building Act 2004

23 April

Ministry of Economic Development

Intellectual Property Rights Enforcement in the Digital Environment

31 March

Electricity Commission

Proposed amendments to parts H and J of the Electricity Governance Rules 2003

22 March

Environment Risk Management Authority

Updating the Hazardous Substances (Tank Wagons and Transportable Containers) Regulations 2004

20 April

Ministry of Fisheries

Setting of management controls to support the introduction of Attached Bladder Kelp, Macrocystis pyrifera (KBB 3G and KBB 4G) into the Quota Management System on 1 October 2010

15 April

Regulatory measures to support the introduction of Patagonian toothfish into the Quota Management System on 1 October 2010

16 April

Ministry of Health

Proposed amendments to regulations under the Medicines Act 1981

26 March

Development of a Natural Health Products Bill

17 May

Department of Labour

Personal grievance system under the Employment Relations Act 2000

31 March

Revision of the Precast Concrete Approved Code of Practice

9 April

Revision of the Excavations and Shafts Approved Code of Practice

9 April

Revision of the Passenger Ropeways Approved Code of Practice

9 April

Revision of the Pressure Equipment (excluding Boilers) Approved Code of Practice

9 April

Revision of the Trees Code

9 April

Revision of the Forestry Operations Approved Code of Practice

9 April

Law Commission

Privacy Act 1993 Issues Paper

30 April

PHARMAC

Possible expansion of PHARMAC's role

1 April

Standards New Zealand

Water supply - Backflow prevention devices

8 April

Timber Preservation

13 May

Timber - Stress-graded for structural purposes

14 May

Water safety signs and beach safety flags

17 May

New Zealand Transport Agency

Review of the SuperGold Card

26 April

 

Current

Who

What

By when… (2010)

Biosecurity New Zealand

Draft Import Health Standard for milk and milk products for human consumption for the European Union and Switzerland

19 March

Draft Import Health Standard for importation of dried and preserved plant material

1 April

Department of Conservation

Foliar Browse Index (FBI) manual

31 March

Kauri National Park proposal

tbc

Draft Guidelines for Aircraft Access for Canterbury Conservancy

Ongoing

Ministry of Economic Development

Criminalisation of cartels

31 March

Ministry of Education

Review of special education

19 March

Electricity Commission

Discussion paper on security, web services, and EIEP data exchange

19 March

Ministry for the Environment

Proposed National Environmental Standard for assessing and managing contaminants in soil

19 April

High Court Rules Committee

The duty of parties to comply with the High Court Rules and the duty of lawyers to assist

7 May

Human Rights Commission

Status of human rights and the Treaty of Waitangi

19 March

Inland Revenue Department

GST treatment of futures contracts

19 March

Fringe benefit tax of motor vehicles

26 March

Whether a lease term is a relevant factor in determining an item's depreciation rate

26 March

Depreciation rate for automated dairy drafting systems

26 March

Ministry of Justice

Implementation of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 - Regulations and Codes of Practice

19 March

A Focus on Victims of Crime: A Review of Victims' Rights

31 March

Department of Labour

Revision of the working in a confined space guideline

9 April

Revocation of the safe use and erection of scaffolding approved code of practice

9 April

Revocation of the Power-Operated elevated work platforms Approved Code of Practice

9 April

Revocation of the Demolition Approved Code of Practice

9 April

Revision of the Approved Code of Practice for Boilers

9 April

New Industrial Rope Access Best Practice Guidelines

9 April

Law Commission

Controlling and regulating drugs Issues Paper

30 April

PHARMAC

Proposals regarding the funding and access arrangements for a number of special foods

19 March

Standards New Zealand

Safety of toys

22 March

Timber framed buildings

7 April

 

This publication is included in Russell McVeagh's website : www.russellmcveagh.com

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:

TIM CLARKE - Partner
Ph 04 819 7532
[email protected]

DOUG BAILEY - Consultant
Ph 04 819 7572
[email protected]

RUSSELL MCVEAGH
VERO CENTRE 48 SHORTLAND STREET
PO BOX AUCKLAND 1140 NEW ZEALAND
PHONE 9 64 367 8000 FAX 64 9 367 8613

VODAFONE ON THE QUAY 157 LAMBTON QUAY
PO BOX 10-214 WELLINGTON 6143 NEW ZEALAND
PHONE 4 4999 555 FAX 4 499 9556