Overseas Investment Act 2005

1: Title
This Act is the Overseas Investment Act 2005.
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
2: One or more Orders in Council may be made appointing different dates for the commencement of different provisions.
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2 brought into force 25 August 2005 clause 2 Overseas Investment Act Commencement Order 2005 Section 2(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Preliminary provisions
3: Purpose
1: The purpose of this Act is to acknowledge that it is a privilege for overseas persons to own or control sensitive New Zealand assets by—
a: requiring overseas investments in those assets, before being made, to meet criteria for consent; and
b: imposing conditions on those overseas investments.
2: This Act also has the purpose of managing certain risks, such as national security and public order risks, associated with transactions by overseas persons. Section 3(2) inserted 16 June 2020 section 4 Overseas Investment (Urgent Measures) Amendment Act 2020
4: Overview
1: In this Act,—
a: this Part deals with preliminary matters, including the purpose of this Act and interpretation:
b: Part 2
i: subpart 1 Fisheries Act 1996
ii: subpart 2
iii: subpart 3
iv: subpart 4 information-gathering
v: subpart 5
vi: subpart 6
vii: subpart 7 (and see also Schedule 1AA
c: Part 3
i: subpart 1
ii: subpart 2
iii: subpart 3
iv: subpart 4
2: This Act replaces the Overseas Investment Act 1973 and the Overseas Investment Regulations 1995.
3: This section is a guide only to the general scheme and effect of this Act. Section 4(1)﻿(b)﻿(iv) amended 22 October 2018 section 7(1) Overseas Investment Amendment Act 2018 Section 4(1)﻿(b)﻿(vii) amended 22 October 2018 section 7(2) Overseas Investment Amendment Act 2018 Section 4(1)﻿(c) inserted 16 June 2020 section 5 Overseas Investment (Urgent Measures) Amendment Act 2020
5: Act incorporates sections 56 to 58B of Fisheries Act 1996
1: This Act incorporates sections 56 to 58B overseas investment fishing provisions this Act
2: See section 57A
6: Interpretation
1: In this Act, unless the context requires otherwise,— acquisition associate section 8 associated land section 8 bed
a: in relation to any river, the space of land that the waters of the river cover at its fullest flow without overtopping the banks; and
b: in relation to a lake not controlled by artificial means, the space of land that the waters of the lake cover at its highest level without exceeding its physical margin; and
c: in relation to a lake controlled by artificial means, the space of land that the waters of the lake cover at the maximum operating level benefit to New Zealand test section 16A business decision call-in transaction section 82 category
a: an overseas investment in sensitive land:
b: an overseas investment in significant business assets:
c: an overseas investment in fishing quota Commission commitment to reside in New Zealand test Part 2 consent consent holder control rights A
a: the power to participate in the control of the composition of A’s governing body; or
b: the right to exercise, or control of the exercise of, the voting power at a meeting of A conveyancing services section 6 court critical direct supplier section 20D direction order section 88 director disposal order section 93 district valuation roll section 7 document
a: anything on which there is writing or any image; and
b: information recorded by means of any article or device (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device; and
c: material subsequently derived from information recorded by that means emergency notification regime subpart 1 section 52 estate or interest section 5(1) excluded accommodation facility
a: a hospital; or
b: any TLtP premises as defined in clause 5
c: a camping ground; or
d: any facility within a class set out in regulations as a class of facility to be treated as an additional excluded accommodation facility in this Act exempted interest
a: an easement; or
b: a profit à prendre profit à prendre exemption certificate clause 4 farm land (other than residential (but not otherwise sensitive) land) (which, to avoid doubt, do not include forestry activities within the meaning of section 16A(9) fishing quota decision sections 56 to 58B foreshore, seabed forestry right
a: a right created in accordance with the Forestry Rights Registration Act 1983
b: any other profit à prendre
i: relates to taking timber from a forest; and
ii: to the extent (if any) that the profit à prendre profit à prendre profit à prendre profit à prendre fresh or seawater area clause 2 of Schedule 5 fresh or seawater interest clause 2 of Schedule 5 give effect to a call-in transaction
a: means to acquire or dispose of any property under a call-in transaction; but
b: excludes an acquisition or disposition that is conditional on a direction order being made give effect to an overseas investment
a: means to acquire or dispose of any property, or establish any business, that results in an overseas investment in sensitive land, overseas investment in significant business assets, or overseas investment in fishing quota; but
b: excludes an acquisition, disposition, or establishment that is conditional on consent being obtained under this Act governing body
a: in relation to a body corporate, the board of directors (or other persons or body exercising powers of management, however described) of the body corporate:
b: in relation to a trust, the trustees:
c: in relation to a unit trust, the manager and trustee:
ca: in relation to a limited partnership, the general partner or partners:
d: in relation to any other partnership, an
i: the board of directors (or other persons or body exercising powers of management, however described) of the partnership, unincorporated joint venture, or other unincorporated body of persons; or
ii: if there is no board or other persons or body as described in subparagraph (i), the partners of the partnership or members of the unincorporated joint venture or other unincorporated body of persons guidelines section 36 historic heritage section 2(1) incidental residential use test clause 14 increased housing test clause 11 individuals with control of the relevant overseas person section 15 intelligence or security agency
a: the New Zealand Defence Force:
b: the Government Communications Security Bureau:
c: the New Zealand Security Intelligence Service interim direction order section 91 interest investor test section 18A investor test factors section 18A(4) involved kaitiakitanga section 2(1) lake section 2(1) land decision LINZ listed issuer
a: means a person that is a party to a listing agreement with a licensed market operator in relation to a licensed market (and includes a licensed market operator that has financial products quoted on its own licensed market); but
b: excludes a person that is a listed issuer only because its debt securities are approved for trading on a licensed market,— where terms used in this definition have the same meanings as in the Financial Markets Conduct Act 2013 long-term accommodation facility
a: means—
i: a retirement village or rest home; or
ii: a hostel within the meaning of section 10(1) section 5B
b: does not include any facility to the extent that it is, or is part of, an excluded accommodation facility managed investment scheme section 9 marine and coastal area section 9(1) adjoining the marine and coastal area media business with significant impact section 20G military or dual-use technology
a: any goods listed in the strategic goods list, but not of a class specified in regulations; and
b: any technology—
i: that control of which, or access to which, could pose a significant risk to national security or public order; and
ii: that is within a class of technology set out in regulations Minister more than 25% ownership or control interest more than 25% subsidiary natural and physical resources section 2(1) natural environment New Zealand listed issuer or, in the case of a managed investment scheme, established under New Zealand law non-occupation outcome clause 17 non-NZ government investor
a: the government, or any part of the government (including regional or local government), of—
i: a territory other than New Zealand; or
ii: a part of a territory other than New Zealand; or
b: a relevant government enterprise; or
c: a person who is acting—
i: as an agent, a trustee, or a representative of a person described in paragraph (a) or (b); or
ii: in any way on behalf of a person described in paragraph (a) or (b); or
iii: subject to the direction, control, or influence of a person described in paragraph (a) or (b) non-residential use test clause 13 non-urban land
a: farm land; and
b: any land other than land that is both—
i: in an urban area; and
ii: used for commercial, industrial, or residential purposes ordinarily resident in New Zealand Overseas Investment Amendment Act (No 3) 2020 Overseas Investment Amendment Bill (No 3) overseas investment in fishing quota section 57D overseas investment in sensitive land section 12 overseas investment in SIB assets section 82 overseas investment in significant business assets section 13 overseas investment transaction overseas person section 7 prohibition order section 92 property regulated profit à prendre
a: means—
i: a forestry right; or
ii: any other profit à prendre profit à prendre profit à prendre
b: does not include a profit à prendre profit à prendre
i: consists only of rights to take any mineral (as that term is defined in section 2(1)
ii: is within a class set out in regulations as a class of profits à prendre profits à prendre regulations regulator section 30 relevant government enterprise
a: a body corporate ( W
aa: a limited partnership ( LP
i: a general partner of LP is a relevant government investor; or
ii: more than 25% of the persons having the right to control the composition of the governing body of LP are relevant government investors; or
iii: more than 25% of the partnership interests (as defined in the Limited Partnerships Act 2008
iv: a relevant government investor or investors have the right to exercise or control the exercise of more than 25% of the voting power at a meeting of the partners of LP; or
b: any other partnership Z
i: more than 25% of Z’s partners or members are relevant government investors; or
ii: 1 or more relevant government investors have a beneficial interest in or entitlement to more than 25% of Z’s profits or assets (including on Z’s winding up); or
iii: 1 or more relevant government investors have the right to exercise, or to control the exercise of, more than 25% of the voting power at a meeting of Z; or
c: a trust ( X
i: more than 25% of X’s governing body are relevant government investors; or
ii: 1 or more relevant government investors have a beneficial interest in or entitlement to more than 25% of X’s trust property; or
iii: more than 25% of the persons having the right to amend or control the amendment of X’s trust deed are relevant government investors; or
iv: more than 25% of the persons having the right to control the composition of X’s governing body are relevant government investors; or
d: a unit trust ( Y
i: the manager or trustee, or both, are relevant government investors; or
ii: 1 or more relevant government investors have a beneficial interest in or entitlement to more than 25% of Y’s trust property; or
e: a managed investment scheme if—
i: the manager or the trustee (as the case may be) is a relevant government investor; or
ii: more than 25% of the value of the investment products in the managed investment scheme is invested on behalf of 1 or more relevant government investors,— where terms used in this paragraph have the same meanings as in the Financial Markets Conduct Act 2013 relevant government investor relevant land that the estate or interest referred to in section 12(1)﻿(a) or (b) relevant Minister or Ministers
a: in the case of a business decision, the Minister:
b: in the case of a fishing quota decision, the Minister and the Minister of Fisheries:
c: in the case of a land decision, the Minister and the Minister for Land Information:
d: in the case of a decision that is in more than 1 of the above categories, all of the Ministers that are relevant to those categories relevant overseas person section 15 Reserve Bank residential (but not otherwise sensitive) land
a: is or includes residential land; but
b: is not otherwise sensitive under Part 1 residential dwelling
a: means a building or group of buildings, or part of a building or group of buildings, that is—
i: used, or intended to be used, only or mainly for residential purposes; and
ii: occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
b: does not include any dwelling—
i: to the extent that it is, or is part of, a long-term accommodation facility or an excluded accommodation facility; or
ii: within a class set out in regulations as a class of dwellings not to be treated as residential dwellings in this Act residential land
a: means land that has a property category of residential or lifestyle in, or for the purpose of, the relevant district valuation roll (for example, the land’s first character category code is “R” or “L”); and
b: includes a residential flat in a building owned by a flat-owning company (regardless of whether the building is on land within a property category referred to in paragraph (a)), and, for that purpose, references in this Act to interest include a licence to occupy that flat, where terms in this paragraph have a meaning corresponding to those in section 121A section 122 risk management action section 96 river section 2(1) section 12 interest section 12 securities of the same class different class security
a: means any interest or right to participate in any capital, assets, earnings, royalties, or other property of any person; and
b: includes specifically—
i: a share in a company or other body corporate; and
ii: a unit in a unit trust; and
iii: an interest in a partnership or unincorporated joint venture; and
iv: a right, conferred by membership of an incorporated or unincorporated body of persons, to participate in the control or management of the body, vote at a general meeting of the body, or participate in the assets or property of the body on its winding up; and
c: includes also any other interest or right that confers rights of ownership of the property of any person, or to participate in the property of any person on the winding up of that person; and
d: includes also any other interest that confers rights to exercise control over the property or assets of any person; and
e: includes securities within paragraphs (a) to (d) in whatever currency they are expressed and whether they are situated in New Zealand or elsewhere; but
f: excludes an interest or right that is—
i: solely an interest in or right to be paid money that is, or is to be, deposited with, lent to, or otherwise owing by, any person (and is not convertible into a security within paragraphs (a) to (d)); or
ii: conferred solely for the purpose of securing the repayment of money of that kind (and is not convertible into a security within paragraphs (a) to (d)) security arrangement sensitive assets
a: a section 12
b: any rights or interests in securities, business, or property of a kind described in section 13
c: any interest in fishing quota, or rights or interests, of a kind described in section 57D
d: any rights or interests in securities or property of a kind described in section 82(2) sensitive (but not residential) land
a: is not and does not include residential land; but
b: is sensitive under Part 1 sensitive information
a: is genetic, biometric, health, or financial information of individuals or relates to the sexual orientation or sexual behaviour of individuals; or
b: is official information (as defined in section 2(1) section 2(1) SIB strategically important business
a: a business that researches, develops, produces, or maintains military or dual-use technology, but not of a class set out in regulations:
b: a business that is a critical direct supplier, but not of a class set out in regulations:
c: a business of a class set out in regulations that is involved in ports or airports:
d: a business of a class set out in regulations that is involved in electricity generation, distribution, metering, or aggregation:
e: a business of a class set out in regulations that is involved in drinking water, waste water, or storm water infrastructure:
f: a business of a class set out in regulations that is involved in telecommunications infrastructure or services:
g: a business of a class set out in regulations that is a financial institution or is involved in financial market infrastructure:
h: a business that is a media business with significant impact:
i: in section 20A
i: a business of a class set out in regulations that is involved in an irrigation scheme:
ii: any other business of a class set out in regulations that is involved in a strategically important industry or that owns or controls high-risk critical national infrastructure:
j: in section 82(2) strategic goods list section 96 subsidiary sections 5 6 transaction
a: the sale or transfer of property or securities; and
b: the issue, allotment, buyback, or cancellation of securities; and
c: the entering into, or the giving of effect to a provision in, a contract or arrangement; and
d: the arriving at, or the giving of effect to, an understanding transaction of national interest
a: a transaction of a kind described in section 20A
b: a transaction that the Minister has identified in a notice given under section 20B unpublished CDS section 20D(2)﻿(b)﻿(i) working day
a: a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
ab: if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
b: a day in the period commencing with 25 December in a year and ending with 15 January in the following year.
2: In this Act, a person is ordinarily resident in New Zealand
a: for the purposes of a transaction that will result in an overseas investment in sensitive land where the relevant land is or includes residential land, and related matters, if the person—
i: holds a residence class visa granted under the Immigration Act 2009
ii: has been residing in New Zealand for at least the immediately preceding 12 months; and
iii: is tax resident in New Zealand ( see
iv: has been present in New Zealand for 183 days or more in total in the immediately preceding 12 months (counting presence in New Zealand for part of a day as a presence for a whole day):
b: for the purposes of a transaction that will not result in an overseas investment in sensitive land where the relevant land is or includes residential land, and related matters, if the person—
i: holds a residence class visa granted under the Immigration Act 2009
ii: is in one of the following categories:
A: is domiciled in New Zealand; or
B: is residing in New Zealand with the intention of residing there indefinitely, and has done for the immediately preceding 12 months ( see
2A: In subsection (2)﻿(a)﻿(iii), tax resident in New Zealand section YD 1(3)
3: Absence from New Zealand for no more than 183 days in aggregate in the last 12 months (counting presence in New Zealand for part of a day as presence for a whole day) does not prevent a person from satisfying the requirement for residing in New Zealand for the last 12 months under subsection (2)﻿(b)﻿(ii)﻿(B)
4: In this Act, a person ( A more than 25% ownership or control interest B
a: a beneficial entitlement to, or a beneficial interest in, more than 25%
b: the power to control the composition of more than 25%
c: the right to exercise or control the exercise of more than 25% and references to other ownership or control interests (for example, of 10% or more) have a corresponding meaning.
5: In this Act, a body corporate ( B more than 25% subsidiary A
a: B is a subsidiary of A under sections 5 to 7
b: A controls the composition of more than 25%
c: A is in a position to exercise, or control the exercise of, more than 25%
6: Section 7
7: In this Act, a person is involved
a: has aided, abetted, counselled, or procured the contravention, the commission of the offence, or the failure; or
b: has induced, whether by threats or promises or otherwise, the contravention, the commission of the offence, or the failure; or
c: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention, the commission of the offence, or the failure; or
d: has conspired with others to effect the contravention, the commission of the offence, or the failure.
8: Subsection (7) does not apply to proceedings for offences (but see Part 4
9: In sections 13(1)﻿(c) 82 section 6(1)
10: A person has disproportionate access to or control of A
a: access to—
i: information that would not otherwise be available to the person, but that is information that is material to an assessment of the value of shares or other financial products issued by A or a related company; or
ii: sensitive information held by A or its subsidiaries:
b: membership or observer rights on the governing body of A:
c: any involvement, other than through the voting of securities, in the substantive decision-making of A regarding—
i: research, development, production, or maintenance of military or dual-use technology or sensitive information; or
ii: the use of, or access to, the assets of A; or
iii: the supply of goods or services to an intelligence or security agency. Section 6(1) 25% or more ownership or control interest repealed 16 June 2020 section 6(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) 25% or more subsidiary repealed 16 June 2020 section 6(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) benefit to New Zealand test inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) call-in transaction inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) commitment to reside in New Zealand test inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) control rights inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) conveyancing services inserted 22 October 2018 section 8(2) Overseas Investment Amendment Act 2018 Section 6(1) critical direct supplier inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) direction order inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) director inserted 5 July 2021 section 4(1) Overseas Investment Amendment Act 2021 Section 6(1) disposal order inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) district valuation roll inserted 22 October 2018 section 4 Overseas Investment Amendment Act 2018 Section 6(1) emergency notification regime inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) estate or interest inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) excluded accommodation facility inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) excluded accommodation facility replaced 5 July 2021 section 4(2) Overseas Investment Amendment Act 2021 Section 6(1) exempted interest replaced 22 October 2018 section 6(1) Overseas Investment Amendment Act 2018 Section 6(1) exemption certificate inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) farm land amended 5 July 2021 section 4(3) Overseas Investment Amendment Act 2021 Section 6(1) farm land amended 22 October 2018 section 8(3) Overseas Investment Amendment Act 2018 Section 6(1) foreshore, seabed inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) foreshore or seabed repealed 16 June 2020 section 6(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) forestry right inserted 22 October 2018 section 6(2) Overseas Investment Amendment Act 2018 Section 6(1) fresh or seawater area inserted 5 July 2021 section 4(1) Overseas Investment Amendment Act 2021 Section 6(1) fresh or seawater interest inserted 5 July 2021 section 4(1) Overseas Investment Amendment Act 2021 Section 6(1) give effect to a call-in transaction inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) governing body inserted 5 July 2021 section 4(4) Overseas Investment Amendment Act 2021 Section 6(1) governing body amended 5 July 2021 section 4(5) Overseas Investment Amendment Act 2021 Section 6(1) historic heritage replaced 5 July 2021 section 4(6) Overseas Investment Amendment Act 2021 Section 6(1) incidental residential use test inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) increased housing test inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) intelligence or security agency inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) interim direction order inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) investor test replaced 22 March 2021 section 6(4) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) investor test factors inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) involved replaced 16 June 2020 section 6(5) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) listed issuer inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) kaitiakitanga inserted 5 July 2021 section 4(1) Overseas Investment Amendment Act 2021 Section 6(1) long-term accommodation facility inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) long-term accommodation facility amended 1 August 2020 section 668 Education and Training Act 2020 Section 6(1) managed investment scheme inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) marine and coastal area inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) media business with significant impact inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) military or dual-use technology inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) more than 25% ownership or control interest inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) more than 25% subsidiary inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) natural environment inserted 5 July 2021 section 4(1) Overseas Investment Amendment Act 2021 Section 6(1) New Zealand listed issuer inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) New Zealand listed issuer amended 5 July 2021 section 4(7) Overseas Investment Amendment Act 2021 Section 6(1) non-NZ government investor inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) non-occupation outcome inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) non-residential use test inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) Overseas Investment Amendment Act (No 3) 2020 inserted 16 June 2020 section 6(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) overseas investment in SIB assets inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) prohibition order inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) regulated profit à prendre inserted 22 October 2018 section 6(2) Overseas Investment Amendment Act 2018 Section 6(1) relevant government enterprise inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) relevant government enterprise inserted 5 July 2021 section 4(8) Overseas Investment Amendment Act 2021 Section 6(1) relevant government enterprise amended 5 July 2021 section 4(9) Overseas Investment Amendment Act 2021 Section 6(1) relevant government investor inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) relevant land amended 16 June 2020 section 6(6) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) residential (but not otherwise sensitive) land inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) residential dwelling inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) residential land inserted 22 October 2018 section 4 Overseas Investment Amendment Act 2018 Section 6(1) risk management action inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) securities of the same class inserted 5 July 2021 section 4(1) Overseas Investment Amendment Act 2021 Section 6(1) section 12 interest inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) security arrangement inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) sensitive assets inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) sensitive (but not residential) land inserted 22 October 2018 section 8(1) Overseas Investment Amendment Act 2018 Section 6(1) sensitive information inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) SIB strategically important business inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) SIB strategically important business inserted 7 June 2021 section 53(14) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) strategic goods list inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) transaction of national interest inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) unpublished CDS inserted 16 June 2020 section 6(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(1) working day replaced 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 6(1) working day inserted 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 Section 6(2) replaced 22 October 2018 section 8(4) Overseas Investment Amendment Act 2018 Section 6(2)﻿(a)﻿(iii) amended 16 June 2020 section 6(7) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(2A) inserted 22 October 2018 section 8(5) Overseas Investment Amendment Act 2018 Section 6(3) amended 22 October 2018 section 8(6) Overseas Investment Amendment Act 2018 Section 6(4) amended 16 June 2020 section 6(8) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(4)﻿(a) amended 16 June 2020 section 6(9) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(4)﻿(b) amended 16 June 2020 section 6(9) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(4)﻿(c) amended 5 July 2021 section 4(10) Overseas Investment Amendment Act 2021 Section 6(4)﻿(c) amended 16 June 2020 section 6(9) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(5) amended 16 June 2020 section 6(10) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(5)﻿(b) amended 16 June 2020 section 6(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(5)﻿(c) amended 16 June 2020 section 6(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(7) inserted 22 October 2018 section 8(7) Overseas Investment Amendment Act 2018 Section 6(8) inserted 22 October 2018 section 8(7) Overseas Investment Amendment Act 2018 Section 6(9) inserted 16 June 2020 section 6(12) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 6(10) inserted 5 July 2021 section 4(11) Overseas Investment Amendment Act 2021
7: Who are overseas persons
1:
2: In this Act, overseas person
a: an individual who is neither a New Zealand citizen nor ordinarily resident in New Zealand; or
b: a body corporate that is incorporated outside New Zealand or is a more than 25% subsidiary of a body corporate incorporated outside New Zealand; or
c: a body corporate—
i: that is a New Zealand listed issuer; and
ii: that meets the ownership test in subsection (3)﻿(a), or the control test in subsection (3)﻿(b), or both; or
d: a body corporate ( A
i: more than 25% of any class of A’s securities; or
ii: the power to control the composition of more than 25% of A’s governing body; or
iii: the right to exercise or control the exercise of more than 25% of the voting power at a meeting of A; or
e: a partnership, unincorporated joint venture, or other unincorporated body of persons (other than a trust or unit trust or managed investment scheme or limited partnership) ( A
i: more than 25% of A’s partners or members are overseas persons; or
ii: an overseas person or persons have a beneficial interest in or entitlement to more than 25% of A’s profits or assets (including on A’s winding up); or
iii: an overseas person or persons have the right to exercise or control the exercise of more than 25% of the voting power at a meeting of A; or
f: a trust ( A
i: more than 25% of A’s governing body are overseas persons; or
ii: an overseas person or persons have a beneficial interest in or entitlement to more than 25% of A’s trust property; or
iii: more than 25% of the persons having the right to amend or control the amendment of A’s trust deed are overseas persons; or
iv: more than 25% of the persons having the right to control the composition of A’s governing body are overseas persons; or
g: a unit trust ( A
i: the manager or trustee, or both, are overseas persons; or
ii: an overseas person or persons have a beneficial interest in or entitlement to more than 25% of A’s trust property; or
h: a managed investment scheme—
i: that is a New Zealand listed issuer; and
ii: that meets the ownership test in subsection (4)﻿(a), or the control test in subsection (4)﻿(b), or both; or
i: a managed investment scheme (other than a New Zealand listed issuer) if—
i: the manager or the trustee (as the case may be) is an overseas person; or
ii: more than 25% of the value of the investment products in the managed investment scheme is invested on behalf of overseas persons; or
j: an overseas limited partnership within the meaning set out in section 4
k: any other limited partnership registered under the Limited Partnerships Act 2008 A
i: a general partner of A is an overseas person; or
ii: more than 25% of the persons having the right to control the composition of the governing body of A are overseas persons; or
iii: more than 25% of the partnership interests (as defined in that Act) of the partners of A are held by overseas persons; or
iv: an overseas person or persons have the right to exercise or control the exercise of more than 25% of the voting power at a meeting of the partners of A.
3: For the purpose of applying subsection (2)﻿(c)﻿(ii) to a New Zealand listed issuer that is a body corporate ( A
a: the ownership test
b: the control test
i: at least 1 overseas person (alone or together with its associates) has a beneficial entitlement to, or a beneficial interest in, 10% or more of any class of A’s securities that confer control rights; and
ii: when the interests of each overseas person to which subparagraph (i) applies are added together, those overseas persons cumulatively have the right to—
A: control the composition of 50% or more of A’s governing body; or
B: exercise or control the exercise of more than 25% of the voting power at a meeting of A.
4: For the purpose of applying subsection (2)﻿(h)﻿(ii) to a New Zealand listed issuer that is a managed investment scheme ( A
a: the ownership test
b: the control test
5: Terms used in subsections (2)﻿(i) and (4) have the same meanings as in the Financial Markets Conduct Act 2013 Section 7(1) repealed 5 July 2021 section 5(1) Overseas Investment Amendment Act 2021 Section 7(2) replaced 5 July 2021 section 5(2) Overseas Investment Amendment Act 2021 Section 7(3) inserted 5 July 2021 section 5(2) Overseas Investment Amendment Act 2021 Section 7(4) inserted 5 July 2021 section 5(2) Overseas Investment Amendment Act 2021 Section 7(5) inserted 5 July 2021 section 5(2) Overseas Investment Amendment Act 2021
8: Meaning of associate and associated land
1: In this Act, a person ( A associate B
a: A is controlled by B or is subject to B's direction:
b: A is B's agent, trustee, or representative, or acts in any way on behalf of B, or is subject to B's direction, control, or influence, in relation to the overseas investment or the other matter:
c: A acts jointly or in concert with B in relation to the overseas investment or the other matter:
d: A participates in the overseas investment or the other matter as a consequence of any arrangement or understanding with B:
e: A would come within any of paragraphs (a) to (d) if the reference to B in any of those paragraphs were instead a reference to another associate of B.
2: If A is an associate associate
3: For the purposes of subsection (1), it does not matter whether the control, direction, power, influence, arrangement, or other relationship between A and B is—
a: direct or indirect:
b: general or specific:
c: legally enforceable or not.
4: In this Act, land ( land A associated land land B
a: land A adjoins land B or, in the case of land on an island listed in Part 2
b: a person owns or controls, or will (as the result of any transaction entered into or to be entered into) own or control, (directly or indirectly) an estate or interest in
c: the same person, or an associate of that person, owns or controls, or will (as the result of any transaction entered into or to be entered into) own or control, (directly or indirectly) an estate or interest in Section 8(4)﻿(b) amended 16 June 2020 section 8 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 8(4)﻿(c) amended 16 June 2020 section 8 Overseas Investment (Urgent Measures) Amendment Act 2020
8A: Status of examples
1: An example used in this Act is only illustrative of the provisions to which it relates. It does not limit those provisions.
2: If an example and a provision to which it relates are inconsistent, the provision prevails. Section 8A inserted 22 October 2018 section 10 Overseas Investment Amendment Act 2018 Transitional, savings, and related provisions Heading inserted 22 October 2018 section 10 Overseas Investment Amendment Act 2018
8B: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 8B inserted 22 October 2018 section 10 Overseas Investment Amendment Act 2018 Act binds the Crown
9: Act binds the Crown
This Act binds the Crown.
2: Consent and conditions regime
1: When consent required and criteria for consent
When consent required
10: Consent required for overseas investments in sensitive New Zealand assets
1: A transaction requires consent under this Act if it will result in—
a: an overseas investment in sensitive land ( see section 12
b: an overseas investment in significant business assets ( see section 13
2: See sections 56 to 58B
11: Consent must be obtained before overseas investment given effect
1: Consent must be obtained for a transaction before the overseas investment is given effect under the transaction.
2: The procedure for obtaining consent (including who must obtain consent) is set out in subpart 2
11A: Exemptions from requirement for consent
1: The exemptions from the requirement for consent in Schedule 3
2: See also Section 11A inserted 22 October 2018 section 11 Overseas Investment Amendment Act 2018 What are overseas investments in sensitive New Zealand assets
12: What are overseas investments in sensitive land
1: An overseas investment in sensitive land section 12 interest
a: an estate or interest in land if—
i: the land that the estate or interest relates to is sensitive land under Part 1 of Schedule 1
ii: the estate or interest acquired is—
A: a freehold estate; or
B: if the land that the interest relates to is residential land, any interest in land (other than an exempted interest) for a total term (as calculated in accordance with Schedule 1A
C: if the land that the interest relates to is sensitive (but not residential) land, any interest in land (other than an exempted interest) for a total term (as calculated in accordance with Schedule 1A
b: rights or interests in securities of a person ( A
i: the overseas person or the associate (either alone or together with its associates) has a more than 25% ownership or control interest in A; or
ii: the overseas person or the associate (either alone or together with its associates) has an increase in an existing more than 25% ownership or control interest in A that—
A: results in an ownership or control interest in A that equals or exceeds their ownership or control interest limit as set out in subsection (2); or
B: is in securities of A of a different class to the class in which their existing interest is held; or
C: gives the overseas person or the associate (either alone or together with its associates) any or more disproportionate access to or control of a strategically important business; or
iii: A becomes an overseas person in any of the following circumstances:
A: A is a body corporate that is a New Zealand listed issuer and meets the control test in section 7(3)﻿(b)
B: A is a managed investment scheme that is a New Zealand listed issuer and meets the control test in section 7(4)﻿(b)
C: A is not a New Zealand listed issuer.
2: The ownership or control interest limits are as follows:
a: if their existing ownership or control interest in A amounts to more than 25% but less than 50%, their ownership or control interest limit is 50%:
b: if their existing ownership or control interest in A amounts to 50% or more but less than 75%, their ownership or control interest limit is 75%:
c: if their existing ownership or control interest in A amounts to 75% or more, their ownership or control interest limit is 100%. Section 12 replaced 5 July 2021 section 6 Overseas Investment Amendment Act 2021
13: What are overseas investments in significant business assets
1: An overseas investment in significant business assets
a: the acquisition by an overseas person, or an associate of an overseas person, of rights or interests in securities of a person ( A
i: as a result of the acquisition, the overseas person or the associate (either alone or together with its associates) has a more than 25% more than 25% of a type referred to in section 12(1)﻿(b)﻿(ii)
ii: the value of the securities or consideration provided, or the value of the assets of A or A and its more than 25% or an alternative monetary threshold that applies in accordance with regulations made under section 61A
b: the establishment by an overseas person, or an associate of an overseas person, of a business in New Zealand (either alone or with any other person) if—
i: the business is carried on for more than 90 days in any year (whether consecutively or in aggregate); and
ii: the total expenditure expected to be incurred, before commencing the business, in establishing that business exceeds $100 million or an alternative monetary threshold that applies in accordance with regulations made under section 61A
c: the acquisition by an overseas person, or an associate of an overseas person, of property (including goodwill and other intangible assets) in New Zealand used in carrying on business in New Zealand (whether by 1 transaction or a series of related or linked transactions) if the total value of consideration provided exceeds $100 million or an alternative monetary threshold that applies in accordance with regulations made under section 61A
2: However, an overseas person that was lawfully carrying on business in New Zealand on 15 January 1996 (which was when the Overseas Investment Regulations 1995 Section 13(1)﻿(a)﻿(i) amended 5 July 2021 section 7 Overseas Investment Amendment Act 2021 Section 13(1)﻿(a)﻿(i) amended 16 June 2020 section 10 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 13(1)﻿(a)﻿(ii) amended 16 June 2020 section 10 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 13(1)﻿(a)﻿(ii) amended 30 December 2018 section 68 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 13(1)﻿(b)﻿(ii) amended 30 December 2018 section 68 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 13(1)﻿(c) amended 30 December 2018 section 68 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Criteria for consent
14: Approach to criteria for consent
1: The relevant Minister or Ministers, in considering whether or not to grant consent to an overseas investment transaction,—
a: must have regard to only the criteria and factors that apply to the relevant category of overseas investment under this subpart (subject to this section); and
b: may consult with any other person or persons, as the Minister or Ministers think appropriate; and
c: must grant consent if satisfied that all of the criteria in section 16 section 18
d: must decline to grant consent if not satisfied that all of the criteria in section 16 section 18
2: For a transaction that is in more than 1 category of overseas investment, the relevant Ministers must have regard to the criteria that apply to all of the relevant categories.
3: However, if the criteria are the same, the relevant Ministers only need to consider the same criteria once (and not consider them under each relevant category).
15: Who are relevant overseas persons, and individuals with control, for overseas investments
1: The relevant Minister or Ministers may determine which 1 or more of the following persons is the relevant overseas person
a: the person making the overseas investment ( A
b: any associate of A in relation to the overseas investment.
2: The relevant Minister or Ministers may determine which 1 or more of the following categories of persons are the individuals with control of the relevant overseas person
a: the individual or individuals who each have a more than 25%
b: the member or members of the governing body of the relevant overseas person:
c: the individual or body of individuals who the Minister or Ministers consider to have that control (whether directly or indirectly). Section 15(2)﻿(a) amended 16 June 2020 section 11 Overseas Investment (Urgent Measures) Amendment Act 2020
16: Criteria for consent for overseas investments in sensitive land
1: The criteria for an overseas investment in sensitive land are all of the following: Criteria regardless of type of relevant land
a: the investor test is met (unless the overseas investment is exempt from this criterion under subsection (3)): Criteria if relevant land is exclusively residential and not otherwise sensitive
b: if the relevant land is residential (but not otherwise sensitive) land,—
i: 1 or more of the following tests in Schedule 2
A: the commitment to reside in New Zealand test:
B: the increased housing test:
C: the non-residential use test:
D: the incidental residential use test; or
ii: the benefit to New Zealand test is met: Criteria if relevant land is exclusively non-residential land that is sensitive
c: if the relevant land is sensitive (but not residential) land,—
i: the relevant overseas person is, or (if that person is not an individual) each of the individuals with control of the relevant overseas person is, a New Zealand citizen, ordinarily resident in New Zealand, or intending to reside in New Zealand indefinitely; or
ii: the benefit to New Zealand test is met: Criteria if relevant land is all residential and some or all is sensitive for some other reason
d: if the relevant land is residential land but is not described in paragraph (b),—
i: the commitment to reside in New Zealand test is met; or
ii: the benefit to New Zealand test is met: Criteria if some relevant land is residential and some or all is sensitive for some other reason
e: if the relevant land is not described in paragraphs (b) to (d), the benefit to New Zealand test is met: Additional criteria if land includes farm land
f: if the relevant land is or includes farm land, before a transaction is entered into with the relevant overseas person, the farm land or section 12 interest has been offered for acquisition on the open market to persons who are not overseas persons as required by the regulations (but see section 20 Additional criteria for transaction of national interest
g: if the overseas investment in sensitive land is a transaction of national interest, the Minister has not declined consent to the transaction ( see section 20C
2:
3: The investor test
a: Circumstance 1
i: the application for consent is under the commitment to reside in New Zealand test only; and
ii: the relevant land is residential (but not otherwise sensitive) land:
b: Circumstance 2
i: the application for consent is under the increased housing test only; and
ii: the increased housing outcome under the test is to be met by a development described in clause 4(1)
iii: the estate or interest
iv: the transaction is entered into before the construction of the dwelling is complete.
4: See also clause 4(5)
5: Section 16(1)﻿(a) heading inserted 16 June 2020 section 12(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(1)﻿(a) replaced 22 October 2018 section 12(1) Overseas Investment Amendment Act 2018 Section 16(1)﻿(b) heading inserted 16 June 2020 section 12(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(1)﻿(b) replaced 22 October 2018 section 12(1) Overseas Investment Amendment Act 2018 Section 16(1)﻿(c) heading inserted 16 June 2020 section 12(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(1)﻿(c) replaced 22 October 2018 section 12(1) Overseas Investment Amendment Act 2018 Section 16(1)﻿(d) heading inserted 16 June 2020 section 12(4) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(1)﻿(d) replaced 22 October 2018 section 12(1) Overseas Investment Amendment Act 2018 Section 16(1)﻿(e) heading inserted 16 June 2020 section 12(5) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(1)﻿(e) replaced 22 October 2018 section 12(1) Overseas Investment Amendment Act 2018 Section 16(1)﻿(f) heading inserted 24 November 2021 section 8 Overseas Investment Amendment Act 2021 Section 16(1)﻿(f) replaced 24 November 2021 section 8 Overseas Investment Amendment Act 2021 Section 16(1)﻿(g) heading inserted 16 June 2020 section 12(6) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(1)﻿(g) inserted 16 June 2020 section 12(6) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(2) repealed 22 March 2021 section 12(7) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(3) inserted 22 October 2018 section 12(2) Overseas Investment Amendment Act 2018 Section 16(3) amended 22 March 2021 section 12(8) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(3)﻿(b)﻿(iii) amended 16 June 2020 section 12(9) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 16(4) inserted 22 October 2018 section 12(2) Overseas Investment Amendment Act 2018 Section 16(5) repealed 22 March 2021 section 12(7) Overseas Investment (Urgent Measures) Amendment Act 2020
16A: Benefit to New Zealand test
Outline
1AA: This subsection shows the ways in which the benefit to New Zealand test can be met, but it is a guide only to the general scheme and effect of this section. The following table is small in size and has 3 columns. Column 1 is headed Pathway. Column 2 is headed Which subsections apply. Column 3 is headed Which counterfactual applies. Pathway Which subsections apply Which counterfactual applies General test Subsections (1), (1A) Subsection (1A)﻿(a) Modified benefit test if relevant land is or includes farm land described in subsection (1C) Subsections (1), (1A), (1C), (1D) , (1E), (2) Subsection (1A)﻿(a) Special benefit test relating to forestry activities Subsections (4) to (9) N/a General test
1: The benefit to New Zealand test is met if both of the following are met:
a: the overseas investment will, or is likely to, benefit New Zealand (or any part of it or group of New Zealanders) to the extent required by this section, as determined by the relevant Ministers under section 17
b: if the relevant land is or includes residential land, the relevant Ministers are satisfied that the conditions that the relevant Ministers will impose on the consent in accordance with section 16B
1A: For the purposes of subsection (1)﻿(a), the relevant Ministers—
a: must assess the benefit to New Zealand (or any part of it or group of New Zealanders) by comparing the likely result of the overseas investment against the existing state of affairs as at the time the overseas investment transaction is entered into or the time the application is made, whichever occurs first ( counterfactual
b: must take a proportionate approach to whether the benefit test is met, by taking into account whether that benefit is proportionate to the following:
i: the sensitivity of the land (for example, the importance to New Zealand of the purpose for which the land is used, the size and value of the land, any sensitive features associated with the land, and the level of interest that the public have in the land) or the fishing quota; and
ii: the nature of the overseas investment transaction (for example, the estate or interest being acquired, whether the estate or interest is temporary or permanent, and the degree of overseas ownership or control of the land or of the estate or interest in land).
1B: However, subsection (1A) does not apply if subsection Modified benefit test if relevant land is or includes farm land
1C: If the relevant land is or includes farm land that in area exceeds 5 hectares, the relevant Ministers must—
a: give the following factors high relative importance:
i: the economic benefits factor in section 17(1)﻿(a)
ii: the oversight or participation factor in section 17(1)﻿(f)
b: ensure that the applicant has demonstrated, in relation to 1 or more of those factors, that the benefits of the investment are of a size or nature that represent a substantial benefit to New Zealand.
1D: However, the relevant Ministers may determine not to apply subsection (1C) if they are satisfied that—
a: the transaction is minor or technical; or
b: the transaction does not materially change the level of ownership or control that the relevant overseas person has over the asset; or
c: the farm land has no or limited productive capacity as farm land and will, or is likely to, be used promptly, as a result of the overseas investment, for industrial or commercial development (for example, a supermarket) or for the construction of 1 or more buildings that, taken together, will consist of 20 or more new residential dwellings.
1E: Subsection (1C) does not preclude the relevant Ministers also giving other factors high relative importance.
2: Subsection (1C) does not apply if the relevant Ministers are satisfied—
a: that, as a result of the overseas investment, the farm land will, or is likely to, be used exclusively, or nearly exclusively, for forestry activities; and
b: that, whenever a crop of trees is harvested on the farm land, a new crop will be, or is likely to be, established on the farm land to replace the crop that is harvested (subject to subsection (7)); and
c: that the non-occupation outcome will, or is likely to, occur in relation to the farm land (where that outcome in clause 17(3) to (5)
3: Special test relating to forestry activities
4: Regulations may provide that the benefit to New Zealand test is also met if the relevant Ministers are satisfied—
a: that the relevant land is already used when the transaction is entered into, and will continue to be used, exclusively, or nearly exclusively, for forestry activities; and
b: that—
i: the relevant land is not residential land only; and
ii: if the relevant land includes any residential land, the residential land adjoins other land that is included in the relevant land but is not residential land; and
c: that the non-occupation outcome will, or is likely to, occur in relation to the relevant land (where that outcome in clause 17(3) to (5)
d: that any requirements set out in regulations in accordance with subsection (5) will be, or are likely to be, met (subject to subsection (8)); and
e: that, whenever a crop of trees is harvested on the relevant land, a new crop will be, or is likely to be, established on the relevant land to replace the crop that is harvested (subject to subsection (7)); and
f:
g: that any other requirements set out in regulations are met.
4A: To avoid doubt, the reference in subsection (2)﻿(a) to the use of the farm land and the reference in subsection (4)﻿(a) to the use of the relevant land mean the use that arises under the estate or interest referred to in section 12(1)﻿(a)
5: Regulations may, for the purposes of subsection (4)﻿(d), set out requirements that must be met after the overseas investment is given effect to.
6: Requirements set out in regulations for the purposes of subsection (4)﻿(d) may (without limitation) be about 1 or more of the following:
a: activities that must, or must not, be carried out on the relevant land:
b: the maintenance or protection of things that exist when or before the overseas investment transaction is entered into (including (without limitation) the maintenance of existing arrangements relating to historic heritage, biodiversity, environmental matters, public access, or the supply of logs):
c: outcomes that must result from the overseas investment. Powers not to apply, or to modify, certain requirements
7: The relevant Ministers may decide—
a: not to apply the requirement set out in subsection (2)﻿(b)
b: to modify the requirement set out in subsection (2)﻿(b)
8: The relevant Ministers may decide not to apply, or may modify, any requirement set out in regulations for the purposes of subsection (4)﻿(d) if satisfied that the relevant overseas person (together with the relevant overseas person’s associates) will not have sufficient ownership or control (direct or indirect) of rights in respect of the relevant land to ensure that the requirement will be met. Definitions
9: In this section,— adjoins forestry activities
a: maintaining a crop of trees:
b: harvesting a crop of trees:
c: maintaining the land during the period between harvesting a crop of trees and establishing a new crop of trees:
d: establishing a crop of trees. Section 16A inserted 22 October 2018 section 13 Overseas Investment Amendment Act 2018 Section 16A(1AA) heading inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1AA) inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1AA) table amended 16 August 2022 section 4(1)﻿(a) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(1AA) table amended 16 August 2022 section 4(1)﻿(b) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(1) heading replaced 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1) replaced 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1A) inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1B) inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1B) amended 16 August 2022 section 4(2) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(1C) heading inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1C) inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1D) inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(1E) inserted 24 November 2021 section 9(1) Overseas Investment Amendment Act 2021 Section 16A(2) heading repealed 16 August 2022 section 4(3) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(2) replaced 16 August 2022 section 4(3) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(3) repealed 16 August 2022 section 4(3) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(4)﻿(a) replaced 16 August 2022 section 4(4) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(4)﻿(c) replaced 16 August 2022 section 4(5) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(4)﻿(f) repealed 24 November 2021 section 9(3) Overseas Investment Amendment Act 2021 Section 16A(4A) inserted 16 August 2022 section 4(6) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(7)﻿(a) amended 16 August 2022 section 4(7) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(7)﻿(b) amended 16 August 2022 section 4(7) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(9) forestry activities replaced 16 August 2022 section 4(8) Overseas Investment (Forestry) Amendment Act 2022 Section 16A(9) special land repealed 24 November 2021 section 9(4) Overseas Investment Amendment Act 2021
16B: Conditions for consents relating to sensitive land that is residential land: benefit to New Zealand test
1: This section applies if an application for consent for an overseas investment in sensitive land is being considered under the benefit to New Zealand test and the relevant land is or includes residential land.
2: However, this section does not apply (and see section 16C
a: to the extent that the relevant land is farm land and the relevant Ministers are satisfied in accordance with section 16A(2)
b: where the application is being considered in accordance with section 16A(4)
3: If consent is granted, to the extent that the consent relates to the residential land,—
a: the relevant Ministers must determine a residential land outcome listed in the table in clause 19
b: the consent must be made subject to the set of conditions for the residential land outcome, subject to any exemptions applying (in each case, as described in the table).
4: Consent may be granted on the basis of different residential land outcomes applying for different parts of the residential land (with different sets of conditions imposed for different parts). Example
A is an overseas person who wants to buy 100% of the shares in what is currently a 100% New Zealand-owned and -controlled company. The company owns the following sensitive land (and has no other interests in sensitive land): 40 hectares of non-urban land (that is not residential land): residential land where 2 houses are being constructed. No part of the land is, or will be, used for forestry activities. Criteria for consent Because the relevant land is a mix of sensitive (but not residential) land and residential land, section 16(1)﻿(e) Residential land outcomes Because the relevant land includes residential land, section 16A(1)﻿(b) A wants to complete and sell one of the houses and live in the other house. A's application for consent proposes the following residential land outcomes (from the table in clause 19 of Schedule 2 occupation as a main home or residence (on the basis that the commitment to reside in New Zealand test will be met in respect of part of the residential land): increased residential dwellings (for the remaining part of the residential land). Required conditions If consent is granted, each part of the residential land will be covered by a set of conditions ( see clause 19 of Schedule 2 ( See also sections 25A and 25B Section 16B inserted 22 October 2018 section 13 Overseas Investment Amendment Act 2018 Section 16B(2) replaced 16 August 2022 section 5(1) Overseas Investment (Forestry) Amendment Act 2022 Section 16B example amended 16 August 2022 section 5(2) Overseas Investment (Forestry) Amendment Act 2022
16C: Conditions for consents relating to sensitive land that will be used for forestry activities
1: Subsection (2) applies if an application for consent for an overseas investment in sensitive land is being considered under the benefit to New Zealand test, to the extent that the relevant land is farm land and the relevant Ministers are satisfied in accordance with section 16A(2)
2: If granted, the consent must be made subject to conditions for the purpose of ensuring that the requirements set out in section 16A(2)
3: Subsection (4) applies if an application for consent for an overseas investment in sensitive land is being considered under the benefit to New Zealand test in accordance with section 16A(4)
4: If granted, the consent must be made subject to conditions for the purpose of ensuring that the following requirements will be met:
a: the requirements set out in section 16A(4)﻿(a) and (c)
b: the requirements set out in regulations made for the purposes of section 16A(4)﻿(d) section 16A(8)
c: the requirement set out in section 16A(4)﻿(e) section 16A(7)
5: A condition imposed in relation to the requirement set out in section 16A(2)﻿(b) Section 16C inserted 22 October 2018 section 13 Overseas Investment Amendment Act 2018 Section 16C(1) replaced 16 August 2022 section 6(1) Overseas Investment (Forestry) Amendment Act 2022 Section 16C(2) replaced 16 August 2022 section 6(1) Overseas Investment (Forestry) Amendment Act 2022 Section 16C(5) amended 16 August 2022 section 6(2) Overseas Investment (Forestry) Amendment Act 2022
17: Factors for assessing benefit of overseas investments in sensitive land
What are the factors
1: The factors for assessing the benefit of overseas investments in sensitive land are whether the overseas investment will, or is likely to,—
a: result in economic benefits for New Zealand (for example, the creation or retention of jobs, the introduction of technology or business skills, increases in productivity or export receipts, or a reduced risk of illiquid assets):
b: result in benefits to the natural environment (for example, protection of indigenous flora and fauna or erosion control):
c: result in continued or enhanced access by the public, or any section of the public, within or over the sensitive land or the features giving rise to the sensitivity (for example, access for recreational purposes or for the purposes of undertaking stewardship of, or exercising kaitiakitanga in relation to, historic heritage or the natural environment):
d: result in continued or enhanced protection of historic heritage in or on the relevant land (for example, agreement to execute a heritage covenant (or comply with existing covenants), agreement to support entry to wāhi tūpuna, wāhi tapu, or wāhi tapu areas on the New Zealand Heritage List/ Rārangi Kōrero, taking other actions under the Heritage New Zealand Pouhere Taonga Act 2014
e: give effect to or advance a significant Government policy:
f: involve oversight of, or participation in, the overseas investment or any relevant overseas person by persons who are not overseas persons:
g: result in other consequential benefits to New Zealand. How factors must be considered
2: For the purposes of section 16A(1)﻿(a) and (b)
a: must consider all the factors in subsection (1) to determine which factor or factors are relevant to the overseas investment; and
b: must determine whether the criteria in section 16A(1)﻿(a) and (b)
i: must deduct from any benefit arising under a factor any directly comparable aspect of the counterfactual, and any negative impact of the overseas investment that is directly comparable, but must stop deducting at zero unless subsection (3) applies:
ii: must not deduct from any benefit arising under a factor any non-directly comparable aspect of the counterfactual or any negative impact of the overseas investment that is not directly comparable unless subsection (3) applies: Examples
Directly comparable If a company is generating $10 million in export receipts at the time that the overseas investment transaction is entered into and the overseas investment will result in a total of $15 million in export receipts, the net benefit in respect of export receipts under the economic factor is $5 million. Non-directly comparable If the overseas investment will result in an increase in jobs, but a decrease in export receipts, as compared with the counterfactual, the decrease in export receipts cannot be deducted from the benefit associated with the increase in jobs. If an overseas investment will result in the introduction of technology but a decrease in export receipts, the decrease in export receipts must not be deducted from any benefits arising from the introduction of technology.
iii: must determine the relative importance to be given to each relevant factor or particular benefit arising under a factor, subject to section 16A(1C)
3: If the overseas investment involves the extraction of water for bottling, or other extraction of water in bulk for human consumption,—
a: an additional factor is whether the overseas investment will, or is likely to, result in a negative impact on water quality or sustainability; and
b: the relevant Ministers must determine the relative importance to be given to this factor and deduct that from any overall benefit to New Zealand that has been determined under section 16A(1)﻿(a) Section 17 replaced 24 November 2021 section 10 Overseas Investment Amendment Act 2021 Section 17(2) amended 16 August 2022 section 7 Overseas Investment (Forestry) Amendment Act 2022 Section 17(2)﻿(b) amended 16 August 2022 section 7 Overseas Investment (Forestry) Amendment Act 2022
18: Criteria for consent for overseas investments in significant business assets
The criteria for an overseas investment in significant business assets are both of the following:
a: the investor test is met:
b: if the overseas investment in significant business assets is a transaction of national interest, the Minister has not declined consent to the transaction ( see section 20C Section 18 replaced 22 March 2021 section 14(2) Overseas Investment (Urgent Measures) Amendment Act 2020
18A: Investor test
Purpose
1: The purpose of the investor test is to determine whether investors are unsuitable to own or control any sensitive New Zealand assets, by assessing whether they are likely to pose risks to New Zealand, based on factors relating to their character and capability. When investor test is met
2: The investor test is met in respect of an overseas investment if the relevant Ministers are satisfied that all of the following persons ( investors
a: the relevant overseas person; and
b: all the individuals with control of the relevant overseas person, to the extent that the relevant overseas person is not an individual.
3: The investor test is met in respect of an investor ( A
a: none of the investor test factors are established; or
b: any investor test factor or factors that are established do not make A unsuitable to own or control any sensitive New Zealand assets. Investor test factors
4: The investor test factors are— Character
a: the following, whether in New Zealand or any other jurisdiction:
i: whether A has, at any time, been convicted of an offence for which A has been sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more:
ii: whether A has, at any time in the preceding 10 years, been convicted of an offence for which A has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more:
iii: if A is not an individual, whether A has, at any time in the preceding 10 years, been convicted of an offence for which A has been sentenced to pay a fine:
iv: whether A has been ordered, in the preceding 10 years, by a court, any other court in New Zealand, or any equivalent body overseas to pay a civil pecuniary penalty in respect of a contravention of any enactment:
v: whether, at any time in the preceding 10 years, a court has imposed a penalty on A for a contravention of this Act or the regulations:
vi: whether any other proceedings have been begun against A, and have not been completed, for any offence, or contravention of an enactment, that carries a penalty corresponding to those listed in subparagraphs (i) to (v)
vii: whether A has entered, in the preceding 10 years, into an enforceable undertaking or an equivalent agreement with any regulator in respect of any contravention or alleged contravention of any enactment:
b: whether A is an individual of a kind referred to in section 16 Capability
c: whether A is a person prohibited from being a director or promoter of, or concerned in the management of, an incorporated or unincorporated body under the Companies Act 1993 Financial Markets Conduct Act 2013 Takeovers Act 1993
d: whether A is a person subject to a management banning order under the Financial Markets Conduct Act 2013 Takeovers Act 1993 section 108
e: whether A has become liable, in the preceding 10 years, to pay a penalty in respect of any of the following:
i: an abusive tax position under section 141D
ii: evasion or a similar act under section 141E
f: whether A, at the date on which the application is made, has outstanding unpaid tax of $5 million or more due and payable in New Zealand or an equivalent amount due and payable in another jurisdiction (where the amount is converted into New Zealand currency by applying the close of trading spot exchange rate on the date or dates on which the tax became due and payable).
5: For the purposes of this section,—
a: enactment
b: preceding 10 years
c: tax
d: section 15(2) subsection (4)﻿(a) section 15(1)﻿(a) and (b)
e: an individual is not an individual of a kind referred to in section 16 of the Immigration Act 2009 section 17(1)﻿(a) Section 18A inserted 22 March 2021 section 15 Overseas Investment (Urgent Measures) Amendment Act 2020
19: Applying good character and
Immigration Act 2009 Section 19 repealed 22 March 2021 section 16 Overseas Investment (Urgent Measures) Amendment Act 2020
20: Exemptions from farm land offer criterion
Powers to exempt
1: Section 16(1)﻿(f)
a: the relevant Ministers consider that the overseas investment need not meet this criterion by reason of the circumstances relating to the particular overseas investment or section 12 interest or the nature of the land to which the section 12 interest relates (for example, its productive capacity); or
b: the overseas person making the overseas investment belongs to a class of overseas persons, or the overseas investment transaction belongs to a class of transactions, that is exempted from this criterion by the relevant Ministers.
2: The relevant Ministers may also exempt a person or transaction from—
a: the requirement that offers for acquisition must be on the open market:
b: any other requirement in regulations about how farm land or section 12 interests must be advertised. Restrictions on powers to exempt
3: The relevant Ministers may grant an exemption under this section only if those Ministers consider that—
a: there are circumstances that mean that it is necessary, appropriate, or desirable to provide an exemption; and
b: the extent of the exemption is not broader than is reasonably necessary to address those circumstances.
4: In so considering, the relevant Ministers—
a: must have regard to the purpose of this Act; and
b: may have regard to any other factors that seem to those Ministers to be relevant to the circumstances. Applications
5: An application for an exemption under this section may be made at any time by written notice to the regulator accompanied by the fee required by regulations. Conditions
6: An exemption under this section may be made subject to any conditions. Class exemptions
7: An exemption made under subsection (1)﻿(b) is secondary legislation ( see Part 3
8: The reasons of the relevant Ministers for granting the exemption must be published with the exemption. Other exemptions
9: An exemption made under subsection (1)﻿(a) or (2) must be published on an Internet site maintained by, or on behalf of, the regulator, together with the reasons of the relevant Ministers for granting the exemption.
10: However, publication under subsection (9) may be deferred or dispensed with (in whole or in part) if the relevant Ministers are satisfied on reasonable grounds that good reason for withholding the exemption or the reasons (as the case may be) would exist under the Official Information Act 1982 Maximum duration
11: An exemption under this section may continue in force for not more than 5 years (and at the close of the date that is 5 years after the exemption first comes into force, the exemption must be treated as having been revoked unless it sooner is revoked or expires). The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	publish it in the Gazette •	publish it on a website maintained by, or on behalf of, the regulator Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 20 replaced 24 November 2021 section 11 Overseas Investment Amendment Act 2021 Transactions of national interest Heading inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020
20A: Transactions that are transactions of national interest
Transactions involving non-NZ government investors or SIB
1: The following kinds of overseas investment transactions are transactions of national interest: Investment by non-NZ government investors
a: a transaction of a kind described in section 12(1)﻿(a) 13(1)﻿(c) section 57D(a)
b: a transaction of a kind described in section 12(1)﻿(b)﻿(i) or (ii) 13(1)﻿(a) section 57D(b) more than 25% Investment in strategically important businesses
c: a transaction of a kind described in section 12(1)﻿(a)
d: a transaction of a kind described in section 12(1)﻿(b)﻿(i) or (ii) 13(1)﻿(a)
e: a transaction of a kind described in section 13(1)﻿(c)
1A: However, for the purpose of subsection (1)﻿(a) and (b), references to a relevant government investor or investors section 6(1) Example
An acquisition by a company of which a New South Wales Government pension fund owns 15% and a Victorian Government pension fund owns 15% is a transaction of national interest (because Australia is the single country). But an acquisition by a company of which a New South Wales Government pension fund owns 15% and a Belgian Government pension fund owns 15% is not a transaction of national interest.
2: The Minister must notify an applicant if the Minister considers that an application for consent involves a transaction of the kind set out in subsection (1), unless the applicant has already identified this in their application.
3: However, failure to notify an applicant does not affect a transaction’s status as a transaction of national interest and does not invalidate any action taken by the Minister in reliance on a transaction’s status as a transaction of national interest.
4: This section is subject to any regulations made under section 127(1) Section 20A inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 20A(1)﻿(b) amended 5 July 2021 section 12(1) Overseas Investment Amendment Act 2021 Section 20A(1)﻿(e) replaced 5 July 2021 section 12(2) Overseas Investment Amendment Act 2021 Section 20A(1A) inserted 5 July 2021 section 12(3) Overseas Investment Amendment Act 2021
20AA: Exemptions from definition
1: The purpose of this section is to allow for exemptions for transactions that are transactions of national interest only because the relevant estate or interest in land, property, or fishing quota is acquired by a relevant government enterprise, provided there are appropriate limitations on the extent to which government control or influence could affect the pursuit of non-commercial objectives.
2: The Minister may exempt any relevant government enterprise from the definition of non-NZ government investor in section 6(1) section 20A(1)﻿(a) or (b)
a: that the enterprise meets the criteria relating to control or influence that are prescribed in the regulations; and
b: that there are circumstances that mean that it is necessary, appropriate, or desirable to provide an exemption; and
c: that the extent of the exemption is not broader than is reasonably necessary.
3: An application for an exemption may be made at any time by written notice to the regulator accompanied by the fee required by regulations.
4: The Minister must publish each exemption granted under this section on an Internet site maintained by, or on behalf of, the regulator, together with the reasons of the Minister for granting the exemption.
5: However, publication may be deferred or dispensed with (in whole or in part) if the Minister is satisfied on reasonable grounds that good reason for withholding the exemption or the reasons (as the case may be) would exist under the Official Information Act 1982
6: An exemption may be made subject to any conditions.
7: An exemption under this section may continue in force for not more than 5 years (and at the close of the date that is 5 years after the exemption first comes into force, the exemption must be treated as having been revoked unless it sooner is revoked or expires). Section 20AA inserted 5 July 2021 section 13 Overseas Investment Amendment Act 2021
20B: Other transactions may be transactions of national interest if notice given
1: If the Minister considers that any other overseas investment transaction for which an application for consent has been made could be contrary to New Zealand’s national interest, the Minister may notify the applicant in writing that the transaction is a transaction of national interest.
2: The person making a decision under section 24 Section 20B inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020
20C: Consent may be declined if transaction contrary to national interest
1: The Minister may decline consent to a transaction of national interest if the Minister considers that the transaction is contrary to New Zealand’s national interest.
2: The person making a decision under section 24
3: If the Minister does not decline consent to a transaction of national interest, the Minister may impose any conditions on any consent that may be granted under this Act, and section 25A Section 20C inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 20C(3) inserted 5 July 2021 section 14 Overseas Investment Amendment Act 2021
20D: Who are critical direct suppliers
1: The Minister may identify a person as a critical direct supplier if the Minister is satisfied that—
a: the person is a direct supplier of goods or services to an intelligence or security agency; and
b: the goods or services are integral to the functioning of the agency as an intelligence or security agency; and
c: the supply of those goods or services cannot readily be replaced.
2: The Minister must—
a: notify a person that they are a critical direct supplier; and
b: either—
i: publish that person’s name in a list of critical direct suppliers on an Internet site maintained by or for the regulator; or
ii: if subsection (3) applies, notify the person that they are an unpublished CDS.
3: The Minister may defer or dispense with publication if the Minister is satisfied on reasonable grounds that good reason for withholding the publication would exist under the Official Information Act 1982
4: The Minister must—
a: notify a person if the person ceases to be a critical direct supplier; and
b: if relevant, remove that person’s name from the list of critical direct suppliers on the Internet site maintained by or for the regulator. Section 20D inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020
20E: Provisions relating to unpublished CDS
1: This section applies if a critical direct supplier has been notified that it is an unpublished CDS. Notice to prospective investors and new investors of status as critical direct supplier
2: An unpublished CDS must notify a person of the unpublished CDS’s status as a critical direct supplier as soon as is reasonably practicable after the earlier of—
a: the date on which there are reasonable grounds for an unpublished CDS to conclude that the person is likely to become an investor in that unpublished CDS; and
b: the date on which an unpublished CDS knows or ought reasonably to know or believes that the person has become an investor in that unpublished CDS.
3: A notice under subsection (2) must—
a: be in writing; and
b: contain any other information specified by the Minister by notice Notice to regulator of investment or prospective investment
4: An unpublished CDS must notify the regulator that it has given a notice under subsection (2) as soon as is reasonably practicable after the notice under subsection (2) is given.
5: A notice under subsection (4) must—
a: be in writing; and
b: contain any information specified by the Minister by notice
c: be accompanied by a copy of the notice given under subsection (2). Contravention is not offence
6: A person who fails to comply with this section does not commit an offence for the purposes of section 45
7: In this section, an investor
8: A notice under subsection (3)﻿(b) or (5)﻿(b) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 20E inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 20E(3)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 20E(5)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 20E(8) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
20F: Status of unpublished CDS confidential
1: This section applies to—
a: a critical direct supplier who has been notified that it is an unpublished CDS; and
b: a person who receives a notice under section 20E
c: a person to whom the status of an unpublished CDS as a critical direct supplier has been disclosed in confidence, if that person knows the critical direct supplier is an unpublished CDS.
2: A person to whom this section applies must not knowingly or recklessly disclose the fact that an unpublished CDS is a critical direct supplier.
3: Subsection (2) does not apply to the extent that disclosure is—
a: required under section 20E 23 87
b: otherwise authorised by the regulator. Section 20F inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020
20G: What are media businesses with significant impact
1: A media business with significant impact
a: all or a significant part of the business involves the generation or aggregation of content; and
b: the business has a significant impact on the plurality of content available to the public or a particular section of the public, either before or as a result of the overseas person’s (or their associate’s) acquisition.
2: Content is available to the public or a particular section of the public
a: a receiver has to pay for the content; or
b: a receiver is required to be a subscriber or member of the publishing service; or
c: the content is delivered on the demand of a receiver; or
d: the content is aimed at particular groups of people (for example, people who are located in a particular area of New Zealand, who have a particular interest, or who speak a particular language).
3: In this section,— content publish Section 20G inserted 16 June 2020 section 17 Overseas Investment (Urgent Measures) Amendment Act 2020
2: Procedure for making an application for consent and for granting consent
21: Application for consent
An application for consent must be made in accordance with this Act and regulations.
22: Who must apply for consent
1: The following persons must apply for consent to an overseas investment transaction:
a: each overseas person or associate making the overseas investment; and
b: if the transaction comes within section 12(1)﻿(b) section 13(1)﻿(a)
2: In addition, the regulator may require any other party to the overseas investment transaction, or any associate of the person referred to in subsection (1)﻿(a) in relation to the overseas investment, to be a party to the application.
23: Requirements for application for consent
1: An application for consent must—
a: be in writing; and
b: be signed by each applicant; and
c: contain the information set out in regulations; and
d: be accompanied by a statutory declaration verifying that the information contained in the application is true and correct, unless the regulator waives this requirement; and
e: be sent to the regulator; and
f: be accompanied by the relevant fee, unless this has already been paid.
2: The statutory declaration must be made by each applicant or, if an applicant is a body corporate, by an officer of that applicant.
3: For the purpose of considering the application, the regulator may, by notice in writing, require the applicant or any other person with information relevant to the application to provide the information specified in the notice and in the form specified by the notice.
4: A person required to provide information under subsection (3) must comply with the regulator’s notice within the time, and in the manner, specified in it. Section 23(1)﻿(c) replaced 16 June 2020 section 18(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 23(4) inserted 16 June 2020 section 18(2) Overseas Investment (Urgent Measures) Amendment Act 2020
23A: Applications for standing consent in advance of transaction
1: A person may, in the circumstances set out in Schedule 4 standing consent
a: that have not been entered into at the time when the application is made and when the standing consent is granted; and
b: that fall within a class of transactions described in the application.
2: A standing consent is a consent to give effect to an overseas investment under a transaction for the purposes of section 10(1)﻿(a) Schedule 4
3: However, a standing consent is not a consent to give effect to an overseas investment under a transaction of a type referred to in section 20A(1)﻿(c) or (d) Section 23A inserted 22 October 2018 section 16 Overseas Investment Amendment Act 2018 Section 23A(3) inserted 5 July 2021 section 15 Overseas Investment Amendment Act 2021
24: Who decides application
1: An application must be decided,—
a: in the case of a land decision, by the Minister and the Minister for Land Information:
b: in the case of a business decision, by the Minister:
c: in the case of a fishing quota decision, by the Minister and the Minister of Fisheries:
d: in the case of a decision that is in more than 1 of the above categories, by all of the Ministers that are relevant to those categories.
2: However, a Minister or Ministers may delegate the power to decide ( see section 32
25: Granting or refusal of consent
1: A consent under this Act may be—
a: granted in respect of a proposed or specified transaction, instrument, or person:
b: granted in respect of classes of transactions, instruments, or persons that the relevant Minister or Ministers determine:
c:
d: granted subject to the payment of a bond:
e: granted in whole or in part:
f: granted retrospectively:
g: refused.
2: A transaction may not be cancelled under section 29(1)﻿(c) Section 25(1)﻿(c) repealed 22 October 2018 section 17 Overseas Investment Amendment Act 2018
25A: Conditions of consent
1: A consent granted under this Act may, in addition to the automatic conditions in sections 25B 25C 25D
2: Nothing in this Act limits the discretion of the relevant Minister or Ministers under subsection (1). For example, conditions of a consent may—
a: expand on, or be similar to, conditions that this Act requires be imposed on the consent (if any):
b: expand on, be similar to, or be the same as conditions that this Act requires be imposed on other consents:
c: require the consent holder to dispose of property in certain circumstances (for example, if a condition of consent is breached).
3: For the purpose of enforcing a condition, the relevant Minister or Ministers may enter into a contract or deed with an applicant (including a mortgage or other security arrangement). Section 25A inserted 22 October 2018 section 18 Overseas Investment Amendment Act 2018 Section 25A(1) amended 5 July 2021 section 16 Overseas Investment Amendment Act 2021
25B: Automatic conditions: every overseas investment
It is a condition of every consent, whether or not it is stated in the consent, that—
a: the information provided by each applicant to the regulator or the relevant Minister or Ministers in connection with the application was correct at the time it was provided; and
b: each consent holder must comply with the representations and plans made or submitted in support of the application and notified by the regulator as having been taken into account when the consent is granted, unless compliance should reasonably be excused. Section 25B inserted 22 October 2018 section 18 Overseas Investment Amendment Act 2018
25C: Automatic condition: every transaction of national interest
It is a condition of every consent relating to a transaction of national interest, whether or not it is stated in the consent, that each consent holder must not, in relation to sensitive assets in which the relevant investment is made, act or omit to act with a purpose or an intention of adversely affecting national security or public order. Section 25C inserted 16 June 2020 section 20 Overseas Investment (Urgent Measures) Amendment Act 2020
25D: Automatic condition: transactions involving fresh or seawater areas
1: Schedule 5
a: an overseas person or their associate obtains consent for an overseas investment in sensitive land; and
b: the section 12 interest to be acquired is or includes a fresh or seawater interest; and
c: the criteria that were satisfied as part of the application for consent included the benefit to New Zealand test.
2: If Schedule 5 Section 25D inserted 24 November 2021 section 17 Overseas Investment Amendment Act 2021
26: Minister may revoke consent in case of fraud
The Minister may revoke a consent for an overseas investment transaction before the overseas investment has been given effect if, in the Minister's opinion, the consent has been obtained by fraud.
27: Consent may be varied by agreement
1: A consent granted under this Act may be varied by the relevant Minister or Ministers with the agreement of the consent holder.
2: Any conditions of a consent may be varied or added to by the relevant Minister or Ministers with the agreement of the consent holder.
3: A condition of a consent may be revoked by the relevant Minister or Ministers.
3A: Subsection (3) does not apply in respect of a condition that this Act required to be imposed but the relevant Ministers may, with the agreement of the consent holder, vary the condition (for example, by varying the specified period within which a matter must occur).
4: An application for variation of a consent or a condition of a consent may be made by written notice to the regulator accompanied by the fee required by regulations. Section 27(3A) inserted 22 October 2018 section 19 Overseas Investment Amendment Act 2018
27A: Consent holder may apply for new consent
1: This section applies to a consent for a transaction that is subject to 1 or more conditions that this Act required to be imposed in relation to the consent.
2: The holder of the consent may apply for a new consent for the transaction.
3: The application must be made on the basis that any overseas investments that have resulted from the transaction are instead to be treated as if they will be given effect to on a future date specified or determined in accordance with the application.
4: The relevant Ministers—
a: must consider the application in accordance with section 14
b: may grant the new consent if satisfied that all of the applicable criteria are met.
5: Despite subsection (3), if the application asks for the benefit to New Zealand test to be applied to any overseas investment, the relevant Ministers may—
a: assess the benefit to New Zealand (or any part of it or group of New Zealanders) by comparing the likely
b: otherwise apply (wholly or partly) any provision of sections 16A to 16C
6: If the relevant Ministers grant the new consent, the new consent (including its conditions) replaces the previous consent (including its conditions) with effect from the start of—
a: the date referred to in subsection (3); or
b: if later, the date after the date on which the new consent is granted. Section 27A inserted 22 October 2018 section 20 Overseas Investment Amendment Act 2018 Section 27A(5)﻿(a) amended 5 July 2021 section 18 Overseas Investment Amendment Act 2021
28: Conditions of consent
Section 28 repealed 22 October 2018 section 21 Overseas Investment Amendment Act 2018
29: Transaction may be cancelled
1: A transaction for which consent is required under this Act and under which the overseas investment has been given effect without that consent—
a: is not an illegal contract for the purposes of subpart 5
b: is not void only because the overseas investment has been given effect to without the requisite consent or because giving effect to the overseas investment without the requisite consent is an offence; but
c: may be cancelled by—
i: a party to the transaction who was not required to obtain consent to the transaction under this Act, by giving notice in writing to all the other parties; or
ii: the court, on the application of the regulator.
2: On cancellation under this section,—
a: the court has the same powers as it has under sections 43 to 48
b: if the court orders the cancellation on the regulator's application, the court may also make any other order necessary to give effect to the cancellation. Section 29(1)﻿(a) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 29(2)﻿(a) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017
29A: Investor test applications where no change since investor test last met
1: A person ( A section 18A(3) to (5)
2: Subsections (3) and (4) apply if the investor test has to be met in respect of a particular overseas investment (a new investment A
3: In that case, the investor test is met, to the extent that it applies to A, if the relevant Ministers are satisfied, in respect of A, that—
a: there has been no change in the extent to which the investor test factors are established; or
b: any change in the extent to which the investor test factors are established does not make A unsuitable to own or control any sensitive New Zealand assets.
4: The statutory declaration required to accompany the application must include verification as to whether there has been any change in the extent to which the investor test factors are established since the information previously provided to the regulator about those factors.
5: However, if A has ever been the investor (or one of the investors) referred to in section 18A(2) section 20C
a: subsection (1) does not apply; and
b: subsection (3) does not apply unless A has met the investor test since that consent was declined.
6: Section 23
7: A single application may relate to all or any of the following applicants:
a: 1 or more persons who together are contemplating an overseas investment transaction (or a series of related or linked transactions); and
b: 1 or more persons who would be associates of the persons in paragraph (a) in relation to those transactions, if they went ahead. Section 29A inserted 5 July 2021 section 19 Overseas Investment Amendment Act 2021
3: Administration
30: Regulator
1: The regulator is the chief executive of the department that for the time being is designated by the Minister by notice in writing to the chief executive as the regulating department.
2: The Minister may at any time by notice in writing to the chief executive revoke the designation of his or her department as the regulating department.
31: What regulator does
The regulator's functions are to—
a: consider each application and advise the relevant Minister or Ministers on how the application should be determined:
b: exercise any of the powers or functions that have been delegated to him or her under this Act or regulations:
c: in relation to an application, consult as the regulator thinks appropriate:
d: monitor compliance with consents or orders made under this Act:
e: issue guidelines when necessary:
f: compile and keep records relating to applications, for example, the number of applications in a particular year:
g: compile and make available statistics relating to applications:
h: provide general information for the benefit of applicants for consent about New Zealand's overseas investment rules:
ha: do the following:
i: monitor compliance with this Act and the regulations:
ii: investigate conduct that constitutes or may constitute a contravention, or an involvement in a contravention, of this Act or the regulations:
iii: investigate conduct that constitutes or may constitute an offence under this Act:
iv: enforce this Act and the regulations:
i: do anything else that is necessary for the efficient operation of the rules relating to overseas investment in sensitive New Zealand assets or the management of certain risks, such as national security and public order risks, associated with transactions by overseas persons Section 31(d) replaced 16 June 2020 section 21(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 31(ha) inserted 22 October 2018 section 22 Overseas Investment Amendment Act 2018 Section 31(i) amended 16 June 2020 section 21(2) Overseas Investment (Urgent Measures) Amendment Act 2020
32: Delegation by relevant Minister or Ministers
1: The relevant Minister or Ministers may delegate to the regulator or any other person any of his or her or their powers or functions under this Act or regulations (including this power of delegation).
2: However, the following cannot be delegated in accordance with subsection (1):
a: a decision under section 20B
b: a decision under section 20C
c: a decision under section 88 90 92 93 96 section 81
d: a decision under section 92 93 96 section 81
3: See section 20B(2) 20C(2) section 24 Section 32(2) inserted 16 June 2020 section 22 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 32(3) inserted 16 June 2020 section 22 Overseas Investment (Urgent Measures) Amendment Act 2020
33: Rules that apply to delegation under this Act or regulations
1: The delegation—
a: must be in writing:
b: in the case of delegation by the Minister, may (but does not have to) be made in a Ministerial directive letter:
c: may be made generally or in relation to any particular matter or class of matters:
d: may be made to—
i: a specified person; or
ii: persons of a specified class; or
iii: the holder for the time being of a specified office or appointment; or
iv: the holders of offices or appointments of a specified class:
e: may be revoked at any time.
2: The delegation may be made subject to any conditions or restrictions that the delegator thinks appropriate.
3: Subject to any general or special directions or conditions or restrictions given or imposed by the delegator, the person to whom a power or function is delegated may exercise that power or function in the same way and with the same effect as if it had been conferred directly by this Act or regulations and not by delegation.
4: A person who purports to act under a delegation is presumed to act in accordance with the terms of the delegation, unless the contrary is proved.
5: A delegation does not prevent the delegator from exercising the power or function that has been delegated.
34: Ministerial directive letter
1: The Minister may direct the regulator by a Ministerial directive letter, and the regulator must comply with it.
2: Subsection (1) applies even if the subject matter of the Ministerial directive letter relates to a power that has been delegated to the regulator.
3: A Ministerial directive letter may direct the regulator about the following things:
a: the Government's general policy approach to overseas investment in sensitive New Zealand assets, including the relative importance of different criteria or factors in relation to particular assets:
b: the asset types, value thresholds, and area thresholds over which the regulator has power to make decisions:
ba: conditions of consents or direction orders, including conditions that this Act requires be imposed:
c: the level of monitoring required in relation to conditions of consent:
d:
e: any general or specific matter relating to the regulator's functions, powers, or duties.
4: A Ministerial directive letter is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 The Ministry of Foreign Affairs and Trade considers that the secondary legislation may have international transparency obligations under the CPTPP s 75 LA19 ss 74(2) 75 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 34(3)﻿(ba) replaced 16 June 2020 section 23 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 34(3)﻿(d) repealed 5 July 2021 section 20(2) Overseas Investment Amendment Act 2021 Section 34(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
35: Ministerial directive letter must be published, etc
Section 35 repealed 28 October 2021 section 3 Secondary Legislation Act 2021
36: Regulator may issue guidelines
1: The regulator may issue guidelines about the following things:
a: the offer of foreshore, seabed, riverbed, or lakebed to the Crown:
b: offer requirements for farm land:
c: monitoring compliance with conditions of consent:
d: the level of information that must be provided in an application:
e: the criteria to be taken into account in deciding whether an overseas person intends to reside in New Zealand indefinitely:
ea: matters relating to the national interest, national security, public order, and risk management actions:
f: any other matters relating to applications, the criteria and consent process, and the rules on overseas investment in sensitive New Zealand assets.
2: The regulator must not issue a guideline unless it has first been approved by the Minister. Section 36(1)﻿(ea) inserted 16 June 2020 section 24 Overseas Investment (Urgent Measures) Amendment Act 2020
37: Regulator must keep list of reserves, parks, and other sensitive areas
Section 37 repealed 5 July 2021 section 20(1) Overseas Investment Amendment Act 2021
37A: Regulator must publish list of sensitive adjoining land relating to collective group of Māori
1:
2: The regulator must compile and keep a list of land and reserves for which the adjoining land is sensitive under rows 10 and 11 of table 2 in Part 1
3: The regulator may amend that list.
4: The list is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it on a website maintained by, or on behalf of, the regulator LA19 ss 73 74(1)﻿(a) cl 14 The Ministry of Foreign Affairs and Trade considers that the secondary legislation may have international transparency obligations under the CPTPP s 75 LA19 ss 74(2) 75 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 37A inserted 16 June 2020 section 25 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 37A(1) repealed 5 July 2021 section 21 Overseas Investment Amendment Act 2021 Section 37A(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 37A(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
37B: Time frames
1: The Governor-General may, by Order in Council, make regulations—
a: setting time frames for the exercise of powers, performance of functions and duties, and provision of services under this Act:
b: requiring information to be included in the annual report of the regulator about the extent to which those time frames are met.
2: The time frames do not create any legal right enforceable in a court of law or affect or limit the way in which a person (for example, a Minister or the regulator) is required to exercise a statutory power of decision.
3: In particular, no form of monetary compensation or relief, or injunctive relief, is available as a remedy if the time frames are not met.
4: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 37B inserted 16 June 2020 section 25 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 37B(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
4: Information-gathering powers
Heading replaced 22 October 2018 section 30 Overseas Investment Amendment Act 2018
38: Regulator may require person
1: For the purpose of monitoring compliance with the terms or conditions of a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order, the regulator may, by notice in writing, require a person ( A
2: A must—
a: comply with the regulator’s notice within the time, and in the manner, specified in it; and
b: certify that the information provided to the regulator, including information contained in any documents provided, is correct.
3: The regulator may retain or copy any information or document that is provided under this section. Section 38 replaced 22 October 2018 section 31 Overseas Investment Amendment Act 2018 Section 38 heading amended 16 June 2020 section 26(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 38(1) replaced 16 June 2020 section 26(2) Overseas Investment (Urgent Measures) Amendment Act 2020
38A: Information for tax purposes
1: The purpose of this section is to enable the making of regulations to impose requirements under which overseas persons who make, or apply to make, an overseas investment in sensitive New Zealand assets must provide information that the Commissioner of Inland Revenue considers necessary or relevant for any purpose relating to—
a: the administration or enforcement of an Inland Revenue Act (within the meaning of the Income Tax Act 2007
b: the administration or enforcement of any matter arising from, or connected with, a function lawfully conferred on the Commissioner.
2: For the purpose of this section, the Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that impose requirements on all or any persons who make, or apply to make, an overseas investment in sensitive assets, including prescribing all or any of the following:
a: overseas investments to which all or any requirements apply (for example, by reference to a type of investment, a pathway, or a type of land):
b: what information or other evidence or documents must be provided:
c: by whom, when, where, and how the information must be provided:
d: to whom the information must be provided:
e: the form that must be used:
f: requirements with which information, evidence, or documents that are provided must comply.
3: The Commissioner may treat information obtained under this section as information obtained for the purposes of administering the Inland Revenue Acts.
4: Regulations made under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 38A inserted 5 July 2021 section 22 Overseas Investment Amendment Act 2021 Section 38A(4) inserted 28 October 2021 regulation 111 Legislation Act (Amendments to Legislation) Regulations 2021
39: Regulator may require any person to provide information for statistical or monitoring purposes
1: The regulator may, by notice in writing, require any person with information relevant to overseas investments in sensitive New Zealand assets or call-in transactions
a: compiling statistical information relating to overseas investment in New Zealand; or
b: monitoring compliance with a term or condition of a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order.
2: The person must—
a: comply with the regulator's notice within the time , and in the manner,
b: provide the information in the form specified in the notice.
3: The regulator may retain or copy any information that is provided under this section. Section 39(1) amended 16 June 2020 section 27(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 39(1)﻿(b) replaced 16 June 2020 section 27(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 39(2)﻿(a) amended 22 October 2018 section 32(2) Overseas Investment Amendment Act 2018
40: Regulator may require person
1: The regulator may, by notice in writing, require a person ( A
a: the extent to which A has complied with the term or condition; and
b: if A is in breach of a term or condition, the reasons for the breach and the steps that A intends to take to remedy the breach.
2: A must provide the declaration—
a: within the time, and in the manner, specified in the notice; or
b: if the notice specifies that A must provide the declaration at intervals, at those intervals.
3: A declaration that is made under this section is not admissible in evidence in any proceedings under this Act except proceedings under section 46 Section 40 replaced 22 October 2018 section 33 Overseas Investment Amendment Act 2018 Section 40 heading amended 16 June 2020 section 28(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 40(1) replaced 16 June 2020 section 28(2) Overseas Investment (Urgent Measures) Amendment Act 2020
41: Regulator may require information and documents
to be provided
1: If the regulator has reasonable grounds to believe that it is necessary or desirable for 1 or more of the purposes set out in subsection (1A), the regulator may, by written notice, require any person ( A
a: to provide to the regulator, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or
b: to provide to the regulator any document or class of documents specified in the notice (within the time and in the manner specified in the notice); or
c: if necessary, to reproduce, or assist in reproducing, in usable form, information recorded or stored in any document or class of documents specified in the notice (within the time and in the manner specified in the notice).
1A: The purposes are as follows:
a: monitoring compliance with this Act or the regulations (or both):
aa: investigating whether a transaction is an overseas investment transaction or a call-in transaction:
ab: investigating whether a transaction, an event, or a matter is contrary to the national interest or gives rise to, or is likely to give rise to, a significant risk to national security or public order:
b: investigating conduct that constitutes or may constitute a contravention, or an involvement in a contravention, of this Act or the regulations (or both):
c: investigating conduct that constitutes or may constitute an offence under this Act:
d: enforcing this Act or the regulations (or both).
2: A must comply with the regulator's notice within the time , and in the manner,
3:
4: The regulator may retain or copy any information or document that is provided under this section.
5: Sections 38 to 40 Section 41 heading amended 16 June 2020 section 29(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 41 heading amended 22 October 2018 section 34(1) Overseas Investment Amendment Act 2018 Section 41(1) replaced 22 October 2018 section 34(2) Overseas Investment Amendment Act 2018 Section 41(1A) inserted 22 October 2018 section 34(2) Overseas Investment Amendment Act 2018 Section 41(1A)﻿(aa) inserted 16 June 2020 section 29(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 41(1A)﻿(ab) inserted 16 June 2020 section 29(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 41(2) amended 22 October 2018 section 34(3) Overseas Investment Amendment Act 2018 Section 41(3) repealed 22 October 2018 section 34(4) Overseas Investment Amendment Act 2018 Section 41(5) inserted 22 October 2018 section 34(5) Overseas Investment Amendment Act 2018
41A: Privileges for person required to provide information or document
A person who is required to provide information or a document under any of sections 38 to 41 Section 41A inserted 22 October 2018 section 35 Overseas Investment Amendment Act 2018
41B: Effect of proceedings
1: If a person commences a proceeding in any court in respect of the exercise of any powers conferred by any of sections 38 to 41
a: the powers may be, or may continue to be, exercised as if the proceeding had not been commenced; and
b: no person is excused from fulfilling the person’s obligations under any of those sections by reason of the proceeding.
2: However, the court may make an interim order overriding the effect of subsection (1), but only if the court is satisfied that—
a: the applicant has established a prima facie case that the exercise of the power in question is unlawful; and
b: the applicant would suffer substantial harm from the exercise or discharge of the power or obligation; and
c: if the power or obligation is exercised or discharged before a final decision is made in the proceeding, none of the remedies specified in subsection (3), or any combination of those remedies, could subsequently provide an adequate remedy for that harm; and
d: the terms of the order do not unduly hinder or restrict the regulator in performing or exercising the regulator’s functions, powers, or duties under this Act.
3: The remedies are as follows:
a: any remedy that the court may grant in making a final decision in relation to the proceeding (for example, a declaration):
b: any damages that the applicant may be able to claim in concurrent or subsequent proceedings:
c: any opportunity that the applicant may have, as defendant in a proceeding, to challenge the admissibility of any evidence obtained as a result of the exercise or discharge of the power or obligation. 2011 No 5 s 57 Section 41B inserted 22 October 2018 section 35 Overseas Investment Amendment Act 2018
41C: Effect of final decision that exercise of powers under sections 38 to 41 unlawful
1: This section applies in any case where it is declared, in a final decision given in any proceeding in respect of the exercise of any powers conferred by any of sections 38 to 41
2: If this section applies, to the extent to which the exercise of those powers is declared unlawful, the regulator must ensure that, immediately after the decision of the court is given,—
a: any information obtained as a consequence of the exercise of powers declared to be unlawful and any record of that information are destroyed; and
b: any documents, or extracts from documents, that are obtained as a consequence of the exercise of powers declared to be unlawful are returned to the person who previously had possession or control of them, and any copies of those documents or extracts are destroyed; and
c: any information derived from or based on such information, documents, or extracts is destroyed.
3: However, the court may order that any information, record, or copy of any document or extract from a document may, instead of being destroyed, be retained by the regulator subject to any terms and conditions that the court imposes.
4: No information, and no documents or extracts from documents, obtained as a consequence of the exercise of any powers declared to be unlawful, and no record of any such information or document,—
a: are admissible as evidence in any civil proceeding unless the court hearing the proceeding in which the evidence is sought to be adduced is satisfied that there was no unfairness in obtaining the evidence:
b: are admissible as evidence in any criminal proceeding if the evidence is excluded under section 30
c: may otherwise be used in connection with the exercise of any powers conferred by this Act unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence. 2011 No 5 s 58 Section 41C inserted 22 October 2018 section 35 Overseas Investment Amendment Act 2018
41D: Confidentiality of information and documents
1: This section applies to the following information and documents:
a: information and documents supplied or disclosed to, or obtained by, the regulator under section 41
b: information derived from information and documents referred to in paragraph (a).
2: The regulator must not publish or disclose any information or document to which this section applies unless—
a: the information or document is available to the public under any enactment or is otherwise publicly available; or
b: the information is in a statistical or summary form; or
c: the publication or disclosure of the information or document is for the purposes of, or in connection with, the performance or exercise of any function, power, or duty conferred or imposed on a Minister or Ministers or the regulator by this Act or any other enactment; or
d: the publication or disclosure of the information or document is made to a law enforcement or regulatory agency for the purposes of, or in connection with, the performance or exercise of any function, power, or duty conferred or imposed on the law enforcement or regulatory agency by any enactment; or
e: the publication or disclosure of the information or document is to a person who the regulator is satisfied has a proper interest in receiving the information or document; or
f: the publication or disclosure of the information or document is with the consent of the person to whom the information or document relates or of the person to whom the information or document is confidential.
3: In relation to personal information, this section applies subject to the Privacy Act 2020 2011 No 5 s 59 Section 41D inserted 22 October 2018 section 35 Overseas Investment Amendment Act 2018 Section 41D(3) amended 1 December 2020 section 217 Privacy Act 2020
41E: Conditions relating to publication or disclosure of information or documents
1: The regulator may, by written notice to a person to whom any information or document is published or disclosed under section 41D(2)﻿(c) to (f)
2: The regulator must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of an individual.
3: Conditions imposed under subsection (1) may include, without limitation, conditions relating to—
a: maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020
b: the storing of, the use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided.
4: A person who refuses or fails, without reasonable excuse, to comply with any conditions commits an offence and is liable on conviction to a fine not exceeding $200,000. 2011 No 5 s 60 Section 41E inserted 22 October 2018 section 35 Overseas Investment Amendment Act 2018 Section 41E(3)﻿(a) amended 1 December 2020 section 217 Privacy Act 2020
5: Enforcement
Disposal of property Heading inserted 22 October 2018 section 36 Overseas Investment Amendment Act 2018
41F: Regulator may issue notice requesting disposal of property
1: This section applies if the regulator has reasonable grounds to believe that a person ( A
a: contravened this Act; or
b: committed an offence under this Act; or
c: failed to comply with a condition of a consent or of an exemption.
2: The regulator may, by notice in writing,—
a: ask A to dispose of the property (within the time and in the manner specified in the notice for the purposes of this paragraph); and
b: require A, if A wants to rely on section 41G(1)
3: The time specified in the notice for the purposes of subsection (2)﻿(a) must not be less than 90 days after the date on which the notice is given (but this does not limit the power to specify any time under subsection (2)﻿(b)).
4: The notice must set out the regulator’s belief and the reasonable grounds for that belief.
5: The regulator may withdraw a notice at any time before A does both of the following:
a: disposes of the property within the time and in the manner specified in the notice under subsection (2)﻿(a); and
b: complies with subsection (2)﻿(b) within the time and in the manner specified in the notice under that paragraph.
6: This section does not limit any other power that the regulator has.
7: In this section and section 41G property section 47(3) Section 41F inserted 22 October 2018 section 36 Overseas Investment Amendment Act 2018
41G: Consequences of disposal or retention of property
1: A person ( A section 41F(1)
a: disposes of the property within the time and in the manner specified in the notice under section 41F(2)﻿(a)
b: complies with section 41F(2)﻿(b)
2: Subsection (1) does not apply if, in connection with the property, A has—
a: made any statement that is false or misleading in any material particular or any material omission in—
i: any offer or representation made for the purposes of this Act or regulations; or
ii: any information or document provided to the regulator; or
iii: any communication with the regulator; or
b: provided the regulator with a document that is false or misleading in any material particular.
3: If another person ( B section 41F(1) civil pecuniary penalty section 48
4: See also Part 4
5: The regulator may take any other enforcement action it thinks fit in relation to the contravention, offence, or failure referred to in section 41F(1)
a: A fails to notify the regulator under section 41F(2)﻿(b)
b: A does not dispose of the property within the time and in the manner specified in the notice under section 41F(2)﻿(a)
6: However, the failure to comply with the notice under section 41F Section 41G inserted 22 October 2018 section 36 Overseas Investment Amendment Act 2018 Section 41G(3) amended 16 June 2020 section 30 Overseas Investment (Urgent Measures) Amendment Act 2020 Offences
42: Offence of giving effect to overseas investment without consent
1: A person who is required to apply for consent to an overseas investment transaction commits an offence if that person gives effect to the overseas investment without the consent required by this Act.
2: A person who commits an offence under subsection (1) is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:
b: in any other case
3: In imposing a penalty under subsection (2), the court must, if the transaction resulted in an overseas investment in fishing quota and the fishing quota or an interest in it has been forfeited under section 58 section 58A Section 42(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 42(2)﻿(b) amended 16 June 2020 section 31 Overseas Investment (Urgent Measures) Amendment Act 2020
43: Offence of defeating, evading, or circumventing operation of Act
1: Every person commits an offence who knowingly or recklessly enters into a transaction, executes an instrument, or takes any other step, for the purpose of, or having the effect of, in any way, directly or indirectly, defeating, evading, or circumventing the operation of this Act.
2: A person who commits an offence under subsection (1) is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:
b: in any other case Section 43(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43(2)﻿(b) amended 16 June 2020 section 32 Overseas Investment (Urgent Measures) Amendment Act 2020
44: Offence of resisting, obstructing, or deceiving
1: Every person commits an offence who resists, obstructs, or deceives any person who is exercising or attempting to exercise any power or function under this Act or regulations.
2: A person who commits an offence under subsection (1) is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:
b: in any other case Section 44(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 44(2)﻿(b) amended 16 June 2020 section 33 Overseas Investment (Urgent Measures) Amendment Act 2020
45: Offence of failing to comply with notice, requirement, or condition
1: Every person commits an offence who, without lawful excuse, fails to comply with—
a: this Act or regulations; or
b: a notice, requirement, or condition given or imposed under this Act or regulations.
2: A person who commits an offence under subsection (1) is liable on
3: Section 45(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 45(3) repealed 1 July 2013 section 413 Criminal Procedure Act 2011
46: Offence of false or misleading statement or omission
1: Every person commits an offence who knowingly or recklessly makes any statement that is false or misleading in a material particular
a: any offer or representation made for the purposes of this Act or regulations; or
aa: any statement made under section 51A
ab: any notice under section 85 86
b: any information or document provided to the regulator; or
c: any communication with the regulator; or
d: any information provided to the regulator or the Commissioner of Inland Revenue under section 38A
2: Every person commits an offence who knowingly or recklessly provides the regulator with a document that is false or misleading in a material particular
3: A person who commits an offence under subsection (1) or subsection (2) is liable on
4: Section 46(1) amended 22 October 2018 section 37(1) Overseas Investment Amendment Act 2018 Section 46(1)﻿(aa) inserted 22 October 2018 section 37(2) Overseas Investment Amendment Act 2018 Section 46(1)﻿(ab) inserted 16 June 2020 section 34 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 46(1)﻿(ab) amended 7 June 2021 section 53(15) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 46(1)﻿(d) inserted 5 July 2021 section 23 Overseas Investment Amendment Act 2021 Section 46(2) amended 22 October 2018 section 37(3) Overseas Investment Amendment Act 2018 Section 46(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 46(4) repealed 1 July 2013 section 413 Criminal Procedure Act 2011 Enforceable undertakings Heading inserted 16 June 2020 section 35 Overseas Investment (Urgent Measures) Amendment Act 2020
46A: Regulator may accept undertakings
1: The regulator may accept an enforceable undertaking given by, or on behalf of, a person in writing in connection with a matter relating to a contravention or an alleged contravention by the person of this Act or regulations (including any matter referred to in section 48(1)
2: An undertaking may include—
a: an undertaking to pay compensation to any person or otherwise take action to avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention or possible contravention of this Act:
b: an undertaking to pay to the regulator all or part of the regulator’s costs incurred in investigating, or bringing proceedings in relation to, a contravention or an alleged contravention.
3: However, the regulator may not accept an undertaking to pay an amount in lieu of a civil pecuniary penalty (for example, a donation to a charity that is not connected with any loss).
4: An undertaking may include an admission of liability by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates, but otherwise does not constitute an admission of liability. 2015 No 70 s 123 Section 46A inserted 16 June 2020 section 35 Overseas Investment (Urgent Measures) Amendment Act 2020
46B: When undertaking is enforceable
1: The regulator must give the person making an undertaking written notice of—
a: its decision to accept or reject the undertaking; and
b: the reasons for the decision.
2: An enforceable undertaking takes effect and becomes enforceable when the regulator’s decision to accept the undertaking is given to the person who made the undertaking, or at any later date specified by the regulator.
3: A person must not contravene an enforceable undertaking given by that person that is in force. 2015 No 70 ss 124(1) 125 Section 46B inserted 16 June 2020 section 35 Overseas Investment (Urgent Measures) Amendment Act 2020
46C: Notice of decision
1: The regulator must publish, on an Internet site maintained by, or on behalf of, the regulator, notice of the decision to accept an enforceable undertaking.
2: The notice must include—
a: a summary of the circumstances and nature of the contravention or alleged contravention of this Act or regulations to which the undertaking relates:
b: a summary of the reasons for that decision:
c: any amounts payable under the undertaking.
3: Alternatively, the notice may include a copy of the undertaking if the undertaking contains all of the information in subsection (2). 2015 No 70 s 124(2) Section 46C inserted 16 June 2020 section 35 Overseas Investment (Urgent Measures) Amendment Act 2020
46D: Withdrawal or variation of enforceable undertaking
1: A person who has given an enforceable undertaking may at any time, with the written agreement of the regulator,—
a: withdraw the undertaking; or
b: vary the undertaking.
2: However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act or regulations.
3: The regulator must publish on an Internet site maintained by, or on behalf of, the regulator notice of the withdrawal or variation of an enforceable undertaking. 2015 No 70 s 128 Section 46D inserted 16 June 2020 section 35 Overseas Investment (Urgent Measures) Amendment Act 2020
46E: Proceedings for alleged contravention
1: No proceedings may be brought for a contravention or an alleged contravention of this Act or regulations against—
a: a person who made an undertaking in relation to that contravention, while the undertaking is enforceable and there is no contravention of the undertaking:
b: a person who made, and has completely discharged, an enforceable undertaking in relation to that contravention.
2: The regulator may accept an enforceable undertaking in relation to a contravention or an alleged contravention before proceedings in relation to that contravention have been completed.
3: If the regulator accepts an enforceable undertaking before the proceedings are completed, the regulator must take all reasonable steps to have the proceedings discontinued as soon as practicable. 2015 No 70 s 129 Section 46E inserted 16 June 2020 section 35 Overseas Investment (Urgent Measures) Amendment Act 2020
46F: Contravention of enforceable undertaking
1: The regulator may apply to the court for an order if a person contravenes an enforceable undertaking.
2: If the court is satisfied that the person who made the enforceable undertaking has contravened the undertaking, the court may make any of the following orders:
a: a civil pecuniary penalty not exceeding $50,000 for an individual or $300,000 in any other case:
b: an order directing the person to comply with the undertaking:
c: an order discharging the undertaking.
3: In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including—
a: orders directing the person to pay to the regulator the costs of the proceedings and the reasonable costs of the regulator in monitoring compliance with the enforceable undertaking in the future:
b: an order in respect of the contravention or alleged contravention of this Act or regulations to which the enforceable undertaking relates, as if no undertaking had been made. 2015 No 70 s 127 Section 46F inserted 16 June 2020 section 36 Overseas Investment (Urgent Measures) Amendment Act 2020
46G: Considerations for court orders
The court must, before making an order under section 46F
a: the nature and extent of the contravention; and
b: any loss or damage caused by the contravention; and
c: any financial gain made, or loss avoided, from the contravention; and
d: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence); and
e: the purpose of this Act; and
f: any other matters that it considers relevant. Section 46G inserted 16 June 2020 section 36 Overseas Investment (Urgent Measures) Amendment Act 2020 Powers of court
47: Court may order disposal of property
1: This section applies if the court is satisfied that a person ( A
a: contravened this Act; or
b: committed an offence under this Act; or
c: failed to comply with a notice under section 38 section 39 section 40 section 41
d: failed to comply with a condition of a consent, an exemption, or a direction order
2: The court may, on the application of the regulator,—
a: order the disposal of the property (whether by A or by some other person appointed by the court, for example, the regulator); and
b: make any other order or give any direction that is necessary to give effect to an order under paragraph (a).
3: In this section, property
a: a right or interest in any security; or
b: an estate or interest
c: an interest in fishing quota; or
d: any other property or any rights or interests in any other property. Section 47(1)﻿(d) amended 16 June 2020 section 37(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 47(3)﻿(b) amended 16 June 2020 section 37(2) Overseas Investment (Urgent Measures) Amendment Act 2020
48: Court may order person in breach
or involved in breach civil pecuniary penalty
1: On the application of the regulator, the court may order a person ( A civil pecuniary penalty
a: contravened this Act; or
b: committed an offence under this Act; or
c: failed to comply with a notice under section 38 section 39 section 40 section 41
d: failed to comply with a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order; or
e: been involved in a contravention of this Act, the commission of an offence under this Act, or a failure to comply referred to in paragraph (c) or (d).
2: The court may order A to pay a civil pecuniary penalty not exceeding the highest of the following:
a: $500,000 in the case of an individual or $10 million in any other case:
b: 3 times the amount of any quantifiable gain (for example, the increase in the value since acquisition) by A in relation to the property to which the consent, exemption, exemption certificate, direction order, interim direction order, prohibition order, or disposal order relates or for which a consent should have been obtained:
c: the cost of remedying the breach of condition:
d: the cost of remedying the breach of a term of a prohibition order or a direction order:
e: the loss suffered by a person in relation to a breach of a term of a condition.
2A: However, in the case of a contravention of section 51C civil pecuniary penalty
3: A person cannot be ordered to pay a penalty under this section and be required to pay a fine under any of sections 42 to 46
4: For the purposes of this section, the court must determine whether a person's conduct falls within subsection (1) on a balance of probabilities. Section 48 heading amended 16 June 2020 section 38(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 48 heading amended 22 October 2018 section 38(1) Overseas Investment Amendment Act 2018 Section 48(1) amended 16 June 2020 section 38(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 48(1)﻿(d) replaced 16 June 2020 section 38(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 48(1)﻿(e) inserted 22 October 2018 section 38(3) Overseas Investment Amendment Act 2018 Section 48(2) replaced 16 June 2020 section 38(4) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 48(2A) inserted 22 October 2018 section 38(6) Overseas Investment Amendment Act 2018 Section 48(2A) amended 16 June 2020 section 38(5) Overseas Investment (Urgent Measures) Amendment Act 2020
48A: Defences for person involved in contravention, offence, or failure
1: This section applies if—
a: a person ( A section 48(1)﻿(c) or (d)
b: another person ( B
2: In any proceeding under section 48
a: B's involvement in the contravention, the commission of the offence, or the failure was due to reasonable reliance on information supplied by another person; or
b: B took all reasonable and proper steps to ensure that A complied with this Act, did not commit the offence, or complied with the notice or condition referred to in section 48(1)﻿(c) or (d)
3: In subsection (2)﻿(a), another person 2013 No 69 s 503 Section 48A inserted 22 October 2018 section 39 Overseas Investment Amendment Act 2018
49: Court may order mortgage to be registered over land
1: The court may, on the application of the regulator, order that a mortgage in favour of the Crown or any other person be registered over land to which a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order
a: the performance of any obligation, or the repayment of any money, under a term or condition of the consent, the exemption, the exemption certificate, the direction order, the interim direction order, the prohibition order, or the disposal order; or
b: the payment of a fine or civil pecuniary penalty
c: the payment of interest that must be paid under an order made under section 50
2: The court must approve the terms of the mortgage before it is registered.
3: The court may make any other order or make any direction that is necessary to give effect to an order under subsection (1). Section 49(1) amended 16 June 2020 section 39(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 49(1)﻿(a) replaced 16 June 2020 section 39(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 49(1)﻿(b) amended 16 June 2020 section 39(3) Overseas Investment (Urgent Measures) Amendment Act 2020
50: Court may order interest to be paid
1: The court may order that a person who is in breach of this Act or a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order civil pecuniary penalty
2: The court may fix the amount of interest in its discretion. Section 50(1) amended 16 June 2020 section 40(a) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 50(1) amended 16 June 2020 section 40(b) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 50(1) amended 22 October 2018 section 41 Overseas Investment Amendment Act 2018
51: Court may order compliance with condition of
consent, exemption, exemption certificate, direction order, or interim direction order
1: This section applies to—
a: a consent holder:
b: a person who is relying on an exemption or an exemption certificate that is subject to a condition:
c: a person who is subject to a direction order or an interim direction order.
2: On the application of the regulator, the court may—
a: restrain a person from acting in breach of a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order
b: order a person in breach of a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order Section 51 heading amended 16 June 2020 section 41(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 51 replaced 22 October 2018 section 42 Overseas Investment Amendment Act 2018 Section 51(1)﻿(c) inserted 16 June 2020 section 41(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 51(2)﻿(a) amended 16 June 2020 section 41(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 51(2)﻿(b) amended 16 June 2020 section 41(3) Overseas Investment (Urgent Measures) Amendment Act 2020
51AAA: Court may grant injunction
1: The court may, on the application of the regulator or any other person, grant an injunction—
a: restraining a person from engaging in conduct that constitutes or would constitute a contravention of this Act or regulations (including any matter referred to in section 48(1)
b: requiring a person to do an act or a thing if—
i: that person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do that act or thing; and
ii: the refusal or failure was, is, or would be a breach of this Act or regulations.
2: The court may at any time rescind or vary an injunction granted under this Part. 2013 No 69 s 480 Section 51AAA inserted 16 June 2020 section 42 Overseas Investment (Urgent Measures) Amendment Act 2020
51AAB: When court may grant restraining injunctions
1: The court may grant an injunction restraining a person from engaging in conduct of a particular kind if—
a: it is satisfied that the person has engaged in conduct of that kind; or
b: it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind.
2: The court may grant an interim injunction restraining a person from engaging in conduct of a particular kind if in its opinion it is desirable to do so.
3: Subsections (1)﻿(a) and (2) apply whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
4: Subsections (1)﻿(b) and (2) apply whether or not the person has previously engaged in conduct of that kind or there is an imminent danger of substantial damage to any other person if that person engages in conduct of that kind. 2013 No 69 s 481 Section 51AAB inserted 16 June 2020 section 42 Overseas Investment (Urgent Measures) Amendment Act 2020
51AAC: When court may grant performance injunctions
1: A court may grant an injunction requiring a person to do an act or a thing if—
a: it is satisfied that the person has refused or failed to do that act or thing; or
b: it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that thing.
2: The court may grant an interim injunction requiring a person to do an act or a thing if in its opinion it is desirable to do so.
3: Subsections (1)﻿(a) and (2) apply whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing.
4: Subsections (1)﻿(b) and (2) apply—
a: whether or not the person has previously refused or failed to do that act or thing; or
b: where there is an imminent danger of substantial damage to any other person if that person refuses or fails to do that act or thing. Section 51AAC inserted 16 June 2020 section 42 Overseas Investment (Urgent Measures) Amendment Act 2020
51AAD: Undertaking as to damages not required by regulator
1: If the regulator applies to the court for the grant of an interim injunction under this subpart, the court must not, as a condition of granting an interim injunction, require the regulator to give an undertaking as to damages.
2: In determining the regulator’s application for the grant of an interim injunction, the court must not take into account that the regulator is not required to give an undertaking as to damages. 2013 No 69 s 482 Section 51AAD inserted 16 June 2020 section 42 Overseas Investment (Urgent Measures) Amendment Act 2020
51AAE: Publication under this subpart may be deferred or dispensed with
The regulator may defer or dispense with publication of a matter under this subpart (in whole or in part) if the regulator is satisfied on reasonable grounds that good reason for withholding the publication would exist under the Official Information Act 1982 Section 51AAE inserted 16 June 2020 section 42 Overseas Investment (Urgent Measures) Amendment Act 2020 Statement relating to compliance with consent requirement Heading inserted 22 October 2018 section 43 Overseas Investment Amendment Act 2018
51A: Person who acquires
1: This section applies if—
a: a person ( A
b: an instrument recording A’s acquisition of the estate or interest will be lodged by or under the direction of a conveyancer.
2: A must, in respect of the acquisition, make a statement, to the best of A’s knowledge and belief, relating to whether the transaction requires consent under this Act and, if so, confirming that—
a: A has complied or will comply with the requirement; and
b: if A is acting on behalf of another person ( B
3: The statement must be made in a manner that is authorised by the regulator in a notice under section 51B
4: The statement—
a: may be in a single document; or
b: may be included as part of another document (for example, an agreement for sale and purchase) if this is authorised by the regulator.
5: A must, before the instrument is lodged, provide the statement, or a copy of the statement, to the conveyancer who will lodge, or direct the lodgement of, the instrument.
6: A statement may be made and provided on A’s behalf by another person ( C
a: by C acting under an enduring power of attorney granted by A under the Protection of Personal and Property Rights Act 1988
b: by C acting in a manner authorised by the regulator in a notice under section 51B
7: In this section and sections 51B 51C conveyancer Lawyers and Conveyancers Act 2006 lodged Land Transfer Act 2017 Section 51A inserted 22 October 2018 section 43 Overseas Investment Amendment Act 2018 Section 51A heading amended 16 June 2020 section 43(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 51A(1) replaced 16 June 2020 section 43(2) Overseas Investment (Urgent Measures) Amendment Act 2020
51B: Regulator must authorise manner of providing statement
1: The regulator must, by notice, authorise the manner in which the statement must be made, including by doing any of the following:
a: specifying the required content of the statement, which may include any information that the regulator thinks relevant (for example, information relating to whether A or B is an overseas person, has or will have a consent, or is relying or will rely on an exemption):
b: approving or prescribing 1 or more forms for the statement or 1 or more methods for making the statement (or both):
c: allowing the statement to be included in another document (for example, in an agreement for sale and purchase):
d: authorising the statement to be made and provided on A’s behalf (including the manner for doing so).
2: The notice is secondary legislation ( see Part 3
3: The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	publish it on an Internet site maintained by, or on behalf of, the regulator Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 51B inserted 22 October 2018 section 43 Overseas Investment Amendment Act 2018 Section 51B(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 51B(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
51C: Conveyancer must obtain and keep statement
1: A conveyancer must not lodge, or direct the lodgement of, the instrument referred to in section 51A(1)﻿(b)
a: has not obtained the statement or a copy of the statement that is required to be provided under section 51A(5) or (6)
b: has reasonable grounds for believing that the statement or copy that is provided is not correct in a material particular.
2: The conveyancer must take reasonable steps to ensure that a copy of the statement is kept for a period of at least 7 years after the date on which the instrument is lodged.
3: Sections 41F 45 47 civil pecuniary penalty section 48 Section 51C inserted 22 October 2018 section 43 Overseas Investment Amendment Act 2018 Section 51C(3) amended 16 June 2020 section 44 Overseas Investment (Urgent Measures) Amendment Act 2020 Administrative penalties
52: Administrative penalties for late filing
1: The regulator may require a person to pay an administrative penalty if the person files, provides, or produces a document required by or under this Act, regulations, or a term or condition of a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order
2: The regulator may refuse to accept the document if the penalty has not been paid.
3: The penalty is recoverable by the regulator in any court of competent jurisdiction as a debt due to the Crown. Section 52(1) amended 16 June 2020 section 45 Overseas Investment (Urgent Measures) Amendment Act 2020
53: Administrative penalty for retrospective consent
The regulator may require the applicant for a retrospective consent to pay an administrative penalty before the consent is granted. Giving, providing, or serving notices or documents Heading replaced 22 October 2018 section 45 Overseas Investment Amendment Act 2018
54: Address for service
1: Every consent holder, holder of an exemption under section 61D
a: have a postal or street address in New Zealand for service of notices and other documents; and
b: notify the regulator of that address; and
c: notify the regulator of any change in that address.
2: However, subsection (1) does not apply to a recipient of a direction order referred to in section 88(1)﻿(a) Section 54 replaced 22 October 2018 section 45 Overseas Investment Amendment Act 2018 Section 54(1) amended 16 June 2020 section 46(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 54(2) inserted 16 June 2020 section 46(2) Overseas Investment (Urgent Measures) Amendment Act 2020
54A: Notices or other documents given, provided, or served by regulator
1: Any notice or other document that the regulator may or must give to, provide to, or serve on any person ( A
a: if A is a person who has complied with section 54
b: in any other case, it has been served in any of the following ways:
i: by leaving the document for A in a prominent position on the relevant land (whether or not A is in possession of that land) and sending a copy of the document to any lawyer or conveyancer who provided conveyancing services to A in respect of the land (where lawyer and conveyancer have the same meanings as in the Lawyers and Conveyancers Act 2006
ii: if A has a known electronic address, by sending it to A at that address in electronic form:
iii: if A has a known place of residence or business in New Zealand, by sending it by prepaid post addressed to A at that place of residence or business:
iv: if A has an agent in New Zealand and A is absent from New Zealand, by sending it by prepaid post addressed to the agent at the agent’s place of residence or business or by sending it in electronic form to the agent at the agent’s electronic address.
2: In subsection (1)﻿(b)﻿(i), relevant land
a: contravened this Act; or
b: committed an offence under this Act; or
c: failed to comply with a notice under section 38 39 40 41
d: failed to comply with a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order
3: Subsection (1)﻿(b)﻿(iv) applies regardless of whether the agent is acting or has acted on behalf of A in respect of the matter to which the document relates.
4: This section applies despite any other rule or law. Section 54A inserted 22 October 2018 section 45 Overseas Investment Amendment Act 2018 Section 54A(2)﻿(d) amended 16 June 2020 section 47 Overseas Investment (Urgent Measures) Amendment Act 2020
55: Non-appearance not ground for court to refuse order under Act if person served in accordance with section 54A
The court must not refuse to make an order under sections 47 to 51 section 54A Section 55 replaced 22 October 2018 section 45 Overseas Investment Amendment Act 2018
55A: Proof that documents given, provided, or served
1: If a document is given, provided, or served by sending it by prepaid post, then, unless the contrary is shown, the document is given, provided, or served when it would have been delivered in the ordinary course of post, and, in proving that the document was given, provided, or served, it is sufficient to prove that the letter concerned was properly addressed and posted.
2: If a document is given, provided, or served by sending it in electronic form, then, unless the contrary is shown, the document is given, provided, or served at the time that the electronic communication first enters an information system that is outside the control of the document's originator, and, in proving that the document was given, provided, or served, it is sufficient to prove that the document concerned was properly addressed and sent.
3: In this section, information system Section 55A inserted 22 October 2018 section 45 Overseas Investment Amendment Act 2018 Search and seizure
56: Search warrant
1: The regulator may apply for a search warrant to search a place or thing.
2: The application must be made in the manner provided in subpart 3 section 3
3: The issuing officer
a: an offence under this Act has been, or is being, committed at the place or thing; or
b: there is in, on, over, or under the place or thing any thing that is evidence of an offence under this Act.
4: The issuing officer
a: the regulator; or
b: a person authorised by the regulator in writing to execute the warrant; or
c: a constable.
5: The provisions of Part 4 sections 118 119 Section 56(2) amended 1 October 2012 section 286(2) Search and Surveillance Act 2012 Section 56(3) amended 1 October 2012 section 286(3) Search and Surveillance Act 2012 Section 56(4) amended 1 October 2012 section 286(4) Search and Surveillance Act 2012 Section 56(4)﻿(c) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 56(5) inserted 1 October 2012 section 286(5) Search and Surveillance Act 2012
57: Form and content of search warrant
Section 57 repealed 1 October 2012 section 286(6) Search and Surveillance Act 2012
58: Powers conferred by search warrant
Section 58 repealed 1 October 2012 section 286(6) Search and Surveillance Act 2012
59: Requirements when executing search warrant
Section 59 repealed 1 October 2012 section 286(6) Search and Surveillance Act 2012
60: Disposal of things seized under search warrant
Section 60 repealed 1 October 2012 section 286(6) Search and Surveillance Act 2012
6: Miscellaneous provisions
60A: Reinstatement of emergency notification regime
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that have the broad effect of reinstating, in respect of an emergency, all or part of the emergency notification regime (in subpart 1 section 52
2: The Minister may make a recommendation only if the Minister is satisfied that the effects of the emergency justify the emergency notification regime being reinstated, having had regard to the following:
a: the economic, social, and other effects of the emergency in New Zealand:
b: any risks to New Zealand’s national interest associated with transactions by overseas persons:
c: New Zealand’s international relations and international obligations.
3: The emergency notification regime—
a: must be limited in scope to transactions that do not require consent ( see section 10
i: rights or interests in securities of a person:
ii: property (including goodwill and other intangible assets) in New Zealand used in carrying on business in New Zealand:
b: must provide for risk management actions only in respect of risks associated with transactions by overseas persons that are contrary to New Zealand’s national interest.
4: The Minister must consult the Minister of Foreign Affairs before making a recommendation.
5: Regulations made under this section are secondary legislation ( see Part 3
6: The Minister must present the reasons for making a recommendation to the House of Representatives not more than 6 sitting days after making the recommendation.
7: The Minister must review, at intervals that are no more than 90 working days apart, whether the effects of the emergency continue to justify the emergency notification regime continuing in place.
8: In doing so, the Minister must have regard to the matters in subsection (2).
9: If the Minister is not satisfied that the emergency notification regime should continue, the Minister must recommend to the Governor-General that the regulations made under this section be revoked. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 60A inserted 5 July 2021 section 24 Overseas Investment Amendment Act 2021
61: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
aaa: prescribing classes of dwellings not to be treated as residential dwellings in this Act:
aab: prescribing additional classes of facilities to be treated as excluded accommodation facilities in this Act:
aac: prescribing classes of profits à prendre profits à prendre
a: determining how to measure value or apply the value thresholds under section 13
b: prescribing, for the purposes of the criteria in section 16(1)﻿(f) section 12
ba: making provision referred to in section 16A(4)
c:
ca:
d:
e: prescribing fees and charges to be paid, or the amounts to be charged, a means by which they may be calculated and ascertained, or a rate at which they may be calculated or ascertained, for the purpose of meeting or assisting in meeting costs of Ministers and the regulator in exercising functions and powers, and performing duties, and providing services, under this Act (and those fees and charges may be set so as to meet any shortfall in cost recovery for any of the preceding 4 financial years, and allowance may be made for any over-recovery of costs in those years, including any estimated shortfall or over-recovery for the immediately preceding financial year)
ea: prescribing the criteria relating to control and influence by government that relevant government enterprises must meet for the purpose of an exemption under section 20AA
f: prescribing maximum bonds to be charged under section 25
g: prescribing maximum administrative penalties to be charged by the regulator, a means by which administrative penalties may be calculated or ascertained, or a rate at which administrative penalties may be calculated or ascertained, for the purposes of sections 52 53
h: exempting or providing for exemptions from, or waivers, refunds, or discounting of, fees, charges, amounts, or administrative penalties:
i: implementing obligations that have entered into force for New Zealand before the commencement of section 46 overseas investments in sensitive land
j: specifying types of overseas persons for the purposes of clauses 4(2)﻿(d) 7 section 46
ja: prescribing, for the purposes of clauses 7 8
i: the process for considering whether a person remains committed to residing in New Zealand, including relevant factors (which may be non-exhaustive):
ii: additional ways in which a trigger event is resolved:
jb: setting a maximum percentage of new residential dwellings in a development that an exemption certificate may be applied to, including a nil percentage:
k: providing for applications for exemptions:
ka: prescribing matters for the purposes of section 61G section 61G(3) section 61G(5)
l: providing for and regulating the giving or service of notices for the purposes of this Act, and the effect of those notices:
la:
lb: prescribing enactments for the purposes of rows 10 and 11 of table 2 Schedule 1
lc:
m: providing for transitional provisions:
n: providing for any other matters contemplated by this Act or necessary for its administration or necessary for giving it full effect.
2: Regulations under this Act (including regulations for prescribing fees, charges, bonds, or administrative penalties) may make different provisions for different cases on any differential basis.
3: Any exemptions made in respect of the matters in subsection (1)﻿(lc) are revoked on the 42nd day after the date on which the Overseas Investment Amendment Act (No 3) 2020
4: The Minister must, at least once in every period of 4 financial years, commence a review of fees and charges set under subsection (1)﻿(e).
5: Regulations under this section are secondary legislation ( see Part 3
6: If regulations authorise a person to grant exemptions, waivers, refunds, or discounts referred to in subsection (1)﻿(h),—
a: an instrument granting an exemption or a waiver, refund, or discount is secondary legislation ( see Part 3
b: the regulations must contain a statement to that effect. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (3). Legislation Act 2019 requirements for secondary legislation referred to in subsection (3) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (4)﻿(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (4)﻿(a) Publication See the relevant publication, presentation, and disallowance table in the secondary legislation referred to in subsection (3) LA19 ss 73 74 cl 14 Presentation The Minister must present it to the House of Representatives, unless a transitional exemption applies under Schedule 1 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 61(1)﻿(aaa) inserted 22 October 2018 section 46(1) Overseas Investment Amendment Act 2018 Section 61(1)﻿(aab) inserted 22 October 2018 section 46(1) Overseas Investment Amendment Act 2018 Section 61(1)﻿(aac) inserted 22 October 2018 section 46(1) Overseas Investment Amendment Act 2018 Section 61(1)﻿(b) replaced 5 July 2021 section 25(1) Overseas Investment Amendment Act 2021 Section 61(1)﻿(ba) inserted 22 October 2018 section 46(2) Overseas Investment Amendment Act 2018 Section 61(1)﻿(ba) amended 5 July 2021 section 25(2) Overseas Investment Amendment Act 2021 Section 61(1)﻿(c) repealed 5 July 2021 section 25(3) Overseas Investment Amendment Act 2021 Section 61(1)﻿(ca) repealed 5 July 2021 section 25(3) Overseas Investment Amendment Act 2021 Section 61(1)﻿(d) repealed 5 July 2021 section 25(3) Overseas Investment Amendment Act 2021 Section 61(1)﻿(e) amended 5 July 2021 section 25(4) Overseas Investment Amendment Act 2021 Section 61(1)﻿(ea) inserted 5 July 2021 section 25(5) Overseas Investment Amendment Act 2021 Section 61(1)﻿(i) replaced 22 October 2018 section 46(4) Overseas Investment Amendment Act 2018 Section 61(1)﻿(i) amended 30 December 2018 section 68A Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 61(1)﻿(j) replaced 22 October 2018 section 46(4) Overseas Investment Amendment Act 2018 Section 61(1)﻿(ja) inserted 22 October 2018 section 46(4) Overseas Investment Amendment Act 2018 Section 61(1)﻿(jb) inserted 22 October 2018 section 46(4) Overseas Investment Amendment Act 2018 Section 61(1)﻿(ka) inserted 22 October 2018 section 46(5) Overseas Investment Amendment Act 2018 Section 61(1)﻿(la) repealed 5 July 2021 section 25(3) Overseas Investment Amendment Act 2021 Section 61(1)﻿(lb) replaced 5 July 2021 section 25(6) Overseas Investment Amendment Act 2021 Section 61(1)﻿(lc) repealed 5 July 2021 section 25(3) Overseas Investment Amendment Act 2021 Section 61(2) replaced 22 October 2018 section 46(6) Overseas Investment Amendment Act 2018 Section 61(3) inserted 16 June 2020 section 48(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 61(4) inserted 5 July 2021 section 25(7) Overseas Investment Amendment Act 2021 Section 61(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 61(6) inserted 28 October 2021 regulation 112 Legislation Act (Amendments to Legislation) Regulations 2021
61A: Regulations regarding alternative monetary thresholds for overseas investments in significant business assets
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations in order to implement obligations in all or any of the following international agreements in respect of certain overseas investments in New Zealand in significant business assets by certain investors:
aaa:
a: the Trans-Pacific Strategic Economic Partnership Agreement, done at Wellington on 18 July 2005:
b: the Free Trade Agreement between the Government of New Zealand and the Government of the People’s Republic of China, done at Beijing on 7 April 2008:
c: the New Zealand–Hong Kong, China Closer Economic Partnership Agreement, done at Hong Kong on 29 March 2010:
d: the Protocol on Investment to the New Zealand–Australia Closer Economic Relations Trade Agreement, done at Wellington on 16 February 2011:
e: the Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation, done at Wellington on 10 July 2013:
f: the Free Trade Agreement between New Zealand and the Republic of Korea, done at Seoul on 23 March 2015:
g: the Trans-Pacific Partnership Agreement, done at Auckland on 4 February 2016:
h: the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, done at Santiago on 8 March 2018:
i: the Free Trade Agreement between New Zealand and the United Kingdom of Great Britain and Northern Ireland, done at London on 28 February 2022.
2: Regulations made under subsection (1) may provide for alternative monetary thresholds under section 13
3: The Minister must be satisfied, before making a recommendation under this section, that the regulations do not provide for an alternative monetary threshold that is higher than the amount provided for in the relevant international agreement referred to in subsection (1), but the text of the regulations may otherwise differ from the text of an agreement.
4: Regulations made under subsection (1) may incorporate by reference any provisions of an international agreement referred to in that subsection.
5: Regulations made under subsection (1) may be made only to implement obligations in an international agreement that has entered into force for New Zealand.
6: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 61A inserted 30 December 2018 section 69 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 61A(1)﻿(aaa) repealed 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(a) replaced 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(b) replaced 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(c) replaced 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(d) replaced 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(e) replaced 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(f) replaced 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(g) replaced 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(h) inserted 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(1)﻿(i) inserted 31 May 2023 section 14 United Kingdom Free Trade Agreement Legislation Act 2022 Section 61A(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
61B: Purpose of exemptions
The purpose of sections 61C 61D
a: provide flexibility where compliance with this Act is impractical, inefficient, unduly costly, or unduly burdensome, taking into account the sensitivity of the sensitive assets and the nature of the overseas investment transaction; or
b: allow for exemptions that are minor or technical; or
c: allow for exemptions in respect of all or any of the following matters:
i: interests in land to be used for diplomatic or consular purposes:
ii: persons registered as a charitable entity under the Charities Act 2005
iii: minor increases in ultimate ownership and control by overseas persons or associates of overseas persons if consent has already been granted for those overseas persons to own or control sensitive assets:
iv: security arrangements that are entered into in the ordinary course of business:
v: relationship property as defined in section 8
vi: interests in land acquired for the purpose of providing network utility services:
vii: interests in residential (but not otherwise sensitive) land acquired in order to comply with a requirement imposed by or under the Resource Management Act 1991
viii: persons, transactions, rights, interests, or assets that the Minister considers to be majority owned and substantively controlled by New Zealanders:
ix: persons, transactions, rights, interests, or assets that the Minister considers support, or are related to, the issuance or management of residential mortgage-backed securities complying with a standard created or endorsed by the Reserve Bank:
x: estates or interests in land other than freehold or leasehold (for example, covenants). Section 61B inserted 22 October 2018 section 47 Overseas Investment Amendment Act 2018 Section 61B(a) replaced 16 June 2020 section 49(1) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 61B(c)﻿(iii) replaced 5 July 2021 section 26(1) Overseas Investment Amendment Act 2021 Section 61B(c)﻿(viii) replaced 5 July 2021 section 26(2) Overseas Investment Amendment Act 2021 Section 61B(c)﻿(ix) inserted 16 June 2020 section 49(2) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 61B(c)﻿(x) inserted 5 July 2021 section 26(3) Overseas Investment Amendment Act 2021
61C: Regulations may contain class or individual exemptions
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations exempting any transaction, person, interest, right, or assets, or any class of transactions, persons, interests, rights, or assets, from the requirement for consent or from the definition of overseas person or associate or associated land.
2: See sections 61E 61F
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 61C inserted 22 October 2018 section 47 Overseas Investment Amendment Act 2018 Section 61C(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
61D: Minister may grant individual exemptions
1: The Minister may exempt any transaction, person, interest, right, or assets from the requirement for consent or from the definition of overseas person or associate or associated land.
2: See sections 61E 61F
3: The Minister must publish each exemption granted under subsection (1) on an Internet site maintained by or for the regulator , unless section 61F(6) Section 61D inserted 22 October 2018 section 47 Overseas Investment Amendment Act 2018 Section 61D(3) amended 16 June 2020 section 50 Overseas Investment (Urgent Measures) Amendment Act 2020
61E: Criteria for all exemptions
1: The Minister may recommend any regulations under section 61C section 61D
a: that there are circumstances that mean that it is necessary, appropriate, or desirable to provide an exemption for any of the matters referred to in section 61B(a) to (c)
b: that the extent of the exemption is not broader than is reasonably necessary to address those circumstances.
2: In so considering, the Minister—
a: must have regard to the purpose of this Act; and
b: may have regard to all or any of the following:
i: the extent to which effective ownership or control is changed by the overseas investment or remains with persons who are not overseas persons:
ii: the extent to which a sensitive asset is already held in overseas ownership or control:
iii: the extent to which the acquisition is the result of the operation of other legislation or an event outside the control of the overseas person:
iv: the extent of time an overseas person is likely to have ownership or control of a right or an interest, for what purpose, and the likely impact on the sensitive asset of that overseas ownership or control:
v: any other factors that seem to the Minister to be relevant to the circumstances. Section 61E inserted 22 October 2018 section 47 Overseas Investment Amendment Act 2018
61F: Other provisions applying to all exemptions
1: This section applies to regulations under section 61C section 61D
2: An exemption may be made subject to any conditions.
3: Regulations under section 61C
a: for conditions of consents, to the extent set out in the regulations, to continue in effect as conditions of the consents but on the basis set out in the regulations (whether or not the person who relies on the exemption is a consent holder):
b: for the person who relies on the exemption to be treated as a consent holder to the extent set out in the regulations:
c: for consent holders to cease to be subject to the conditions of their consents to the extent set out in the regulations.
4: An exemption may at any time be amended or revoked in the same way as it may be made (for example, section 61E
5: The reasons of the Minister for recommending the regulations or granting an exemption (including why the exemption is necessary, appropriate, or desirable) must be published together with the regulations or exemption.
6: However, the publication of an exemption under section 61D Official Information Act 1982 1993 No 107 ss 45 45A 2013 No 69 ss 571(5) 572 Section 61F inserted 22 October 2018 section 47 Overseas Investment Amendment Act 2018 Section 61F(6) amended 16 June 2020 section 51 Overseas Investment (Urgent Measures) Amendment Act 2020
61G: Person who relies on exemption to acquire property may be subject to existing consent or exemption conditions
1: This section applies if—
a: 1 or more of the following apply:
i: a consent holder ( A
ii: a person ( A
iii: because of the previous operation of this section, a person ( A
b: another person ( B
c: the regulations specify 1 or more classes of conditions to which subsection (3) applies.
2: However, this section does not apply in the circumstances prescribed in the regulations (if any).
3: B must be treated as being subject to the conditions referred to in subsection (1)﻿(a) that are of the class specified in the regulations (and those conditions apply as conditions of a consent or an exemption, as the case may be, with all necessary modifications as if B were the person who was originally subject to the conditions).
4: If the conditions that apply to B are conditions of a consent, B must be treated as being a consent holder in respect of the property and in respect of the conditions (for example, B may agree to the variation of the conditions under section 27
5: A ceases to be subject to the conditions in the circumstances, and to the extent, provided for in the regulations.
6: Subsection (5) does not limit subsection (4).
7: This section does not limit section 61F(3) Section 61G inserted 22 October 2018 section 47 Overseas Investment Amendment Act 2018
62: Foreshore, seabed, riverbed, or lakebed acquired by the Crown under consent process is not subdivision
Section 62 repealed 24 November 2021 section 27 Overseas Investment Amendment Act 2021
7: Transitional provisions and amendments to other enactments
Dissolution of Commission
63: Commission dissolved
The Commission is dissolved.
64: Assets and liabilities vest in the Crown
All rights, assets, liabilities, and debts that the Commission had immediately before the commencement of section 63
65: No compensation for loss of office
The Crown is not liable to make a payment to, or otherwise compensate, any person in respect of that person ceasing to hold any office established by or under the Overseas Investment Act 1973
66: Transfer to LINZ
A person who was employed by the Reserve Bank in a position with the Commission immediately before the commencement of section 63
67: Transferring employee must be employed in equivalent employment
1: An employee who transfers to LINZ under section 66 section 63
2: In subsection (1), equivalent employment
a: in substantially the same position; and
b: in the same general locality; and
c: on terms and conditions that are no less favourable.
3: The requirement that the terms and conditions of the employee's employment with LINZ are no less favourable continues to apply until those terms and conditions are varied by agreement between the employee and the chief executive of LINZ.
68: Continuity of employment
1: Every transferring employee becomes an employee of LINZ on the commencement of section 63
2: However, for the purposes of every enactment, law, determination, contract, and agreement relating to the employment of the employee,—
a: the employee's contract of employment with LINZ must be treated as a continuation of the employee's contract of employment with the Reserve Bank; and
b: the employee's period of service with the Reserve Bank, and every other period of service of that employee that was recognised by the Reserve Bank as continuous service, must be treated as a period of service with LINZ.
69: No compensation for technical redundancy
A transferring employee is not entitled to receive any payment or any other benefit on the ground that—
a: the position held by the person with the Reserve Bank has ceased to exist (as a result of the dissolution of the Commission); or
b: the person has ceased (as a result of the transfer to LINZ) to be an employee of the Reserve Bank.
70: Final report
1: Before the commencement of section 63
2: The Minister must present a copy of the report to the House of Representatives not more than 6 sitting days after receiving it.
71: References to Commission
Unless the context otherwise requires, every reference to the Commission in any enactment, agreement, deed, instrument, application, notice, or any other document in force immediately before the commencement of section 63
72: Proceedings of Commission
1: Any proceedings to which the Commission is a party before the commencement of section 63
2: This section is for the avoidance of doubt. Amendments to Fisheries Act 1996 Heading repealed 22 October 2018 section 25 Overseas Investment Amendment Act 2018
73: New sections 56 to 58B substituted in Fisheries Act 1996
Section 73 repealed 22 October 2018 section 25 Overseas Investment Amendment Act 2018 Amendment to Te Ture Whenua Maori Act 1993 Heading repealed 22 October 2018 section 25 Overseas Investment Amendment Act 2018
74: Amendment to Te Ture Whenua Maori Act 1993
Section 74 repealed 22 October 2018 section 25 Overseas Investment Amendment Act 2018 Consequential amendments Heading repealed 22 October 2018 section 25 Overseas Investment Amendment Act 2018
75: Consequential amendments
Section 75 repealed 22 October 2018 section 25 Overseas Investment Amendment Act 2018 Transitional provisions
76: Repeal and revocations
1: In this section and in the rest of this subpart,— 1973 Act Regulations Overseas Investment Regulations 1995
2: The 1973 Act is repealed and the Regulations and the Overseas Investment Exemption Notice 2001
77: Transitional provision for acts done or begun under previous overseas investment regime
1: In this section, the 1973 Act, the Regulations, sections 56 to 58 section 152(3) sections 73 74 76 previous regime
2: The previous regime continues to have effect as if it had not been replaced by this Act (subject to section 71
a: investigating any offence under or breach of the previous regime committed before the commencement of this section ( commencement
b: considering and determining any application for consent or exemption under the Regulations that is made before commencement or that relates to a transaction entered into before commencement:
c: considering and determining any application for a declaration under section 56(2) section 57
d: considering and determining an application for confirmation of an alienation under section 152(3)
e: completing any proceedings commenced under the previous regime before commencement.
78: Transitional provision for consents, exemptions, and conditions under 1973 Act and Regulations
1: This section applies to consents granted under the Regulations, exemptions granted under the 1973 Act or regulation 16 of the Regulations section 76 section 77(2)
2: Those consents, exemptions, and conditions must be treated as if they were consents and exemptions granted under this Act, or conditions applied under this Act,—
a: for the purposes of subpart 4 (monitoring):
b: for the purposes of subpart 5 (enforcement), in relation to any act or omission that occurs after the commencement of section 76
3: However, the following provisions, as in force immediately before the commencement of section 76
a: regulation 14(2) of the Regulations, to those consents and conditions of those consents:
b: regulation 16(3) of the Regulations, to those exemptions.
79: Transitional provision for permissions, etc, under Fisheries Act 1996
1: This section applies to permissions granted under section 28Z(9) section 57(3) section 73 section 77(2)
2: Those permissions and conditions must be treated as if they were consents granted and conditions applied under this Act.
3: However, regulation 14(2) of the Regulations, as in force immediately before the commencement of section 76
80: Transitional provision relating to clause 6 of Schedule 1AA (Exemption relating to dwellings in large apartment developments where sales of dwellings have begun before assent date)
A person may apply for an exemption certificate, and the application may be dealt with, before the commencement of clause 6 Section 80 inserted 5 September 2018 section 48 Overseas Investment Amendment Act 2018
3: National security and public order risks management regime
Part 3 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
81: Purpose of Part
1: The purpose of this Part is to manage significant national security and public order risks associated with transactions by overseas persons.
2: In order to give effect to that purpose, the Minister may—
a: review call-in transactions in accordance with subpart 1
b: take any of the following actions in accordance with subpart 2
i: make a direction order in relation to a call-in transaction ( see sections 88 to 90
ii: make a prohibition order in relation to a call-in transaction ( see section 92
iii: make a disposal order in relation to an investment given effect to under a call-in transaction or a transaction of national interest ( see section 93
iv: make a recommendation that a person be put into statutory management ( see section 96
3: The Minister may also make an interim direction order if the Minister is considering whether to take any of those actions, or what kind of action to take, in relation to a call-in transaction ( see section 91 Section 81 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 81(1) replaced 7 June 2021 section 53(2) Overseas Investment (Urgent Measures) Amendment Act 2020
1: Call-in transactions
Subpart 1 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Subpart 1 heading replaced 7 June 2021 section 53(3) Overseas Investment (Urgent Measures) Amendment Act 2020 Call-in transactions, etc Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
82: What is call-in transaction and overseas investment in SIB assets
1: A call-in transaction
a: is an overseas investment in SIB assets; but
b: does not require consent ( see section 10
2: An overseas investment in SIB assets Investment in strategically important businesses
a: the acquisition by an overseas person, or an associate of an overseas person, of rights or interests in securities of a person ( A Investment in media businesses with significant impact
i: in the case of a SIB that is a media business with significant impact, as a result of the acquisition the overseas person or the associate (either alone or together with its associates) has—
A: a more than 25% ownership or control interest in A; or
B: an increase in an existing more than 25% ownership or control interest in A of a type referred to in subsection (3); or Investment in listed issuers
ii: in the case of A being a listed issuer (or an issuer that would be within the definition of listed issuer if references in that definition to a licensed market operator included equivalent overseas market operators) that is not carrying on a media business with significant impact, as a result of the acquisition the overseas person or the associate (either alone or together with its associates) has—
A: a 10% or more ownership or control interest in A; or
B: an increase in an existing 10% or more ownership or control interest in A that is of a type referred to in subsection (3); or
C: any or more disproportionate access to or control of a SIB; or Any other investment in SIB business
iii: in any other case, as a result of the acquisition the overseas person or the associate (either alone or together with its associates) has—
A: any ownership or control interest in A; or
B: an increase in any existing ownership or control interest in A that is of a type referred to in subsection (3); or Investment in SIB property
b: the acquisition by the overseas person or the associate of property (including goodwill and other intangible assets) in New Zealand used in carrying on a SIB,—
i: in the case of an acquisition of property used by a critical direct supplier, if that supplier considers that the acquisition may impact its ability to provide contracted services to an intelligence or security agency; or
ii: in the case of an acquisition of property that is used by a media business with significant impact, if the value of the property acquired is more than 25% of the value of all property owned by the media business immediately before the acquisition; or
iii: in any other case, if the acquisition of the property would result in the overseas person or associate becoming or being a SIB, or being capable of being a SIB if it were to use the property for an activity of a type referred to in the definition of a SIB in section 6
3: An increase is of a type referred to in this subsection if it—
a: results in an ownership or control interest in A that equals or exceeds their ownership or control interest limit as follows:
i: if their existing ownership or control interest in A amounted to 25% or less, their ownership or control interest limit is 25%:
ii: if their existing ownership or control interest in A amounted to more than 25% but less than 50%, their ownership or control interest limit is 50%:
iii: if their existing ownership or control interest in A amounted to 50% or more but less than 75%, their ownership or control interest limit is 75%:
iv: if their existing ownership or control interest in A amounted to 75% or more, their ownership or control interest limit is 100%; or
b: is in securities of A of a different class to the class in which their existing interest is held; or
c: gives the overseas person or the associate (either alone or together with its associates) any or more disproportionate access to or control of a SIB.
4: A supplier referred to in subsection (2)﻿(b)﻿(i) must notify the overseas person or the associate of its obligations under section 85 Section 82 replaced 7 June 2021 section 53(4) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 82(2) replaced 5 July 2021 section 28(2) Overseas Investment Amendment Act 2021 Section 82(3) replaced 5 July 2021 section 28(2) Overseas Investment Amendment Act 2021 Section 82(4) inserted 5 July 2021 section 28(2) Overseas Investment Amendment Act 2021
83: Who are relevant acquirers
The Minister may determine which 1 or more of the following persons is the relevant acquirer
a: the person making the overseas investment ( A
b: any associate of A in relation to the overseas investment. Section 83 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Review of call-in transactions Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
84: Review of call-in transactions
1: The Minister must review a call-in transaction that is notified under section 85 86
2: The Minister must take a risk management action following a review under subsection (1).
3: The Minister may review any other call-in transaction.
4: The purpose of a review is to determine whether the transaction gives rise, or is likely to give rise, to a risk referred to in section 81
5: However, if a direction order has already been made in relation to a call-in transaction, the Minister cannot review that transaction, or take another risk management action in relation to the transaction, unless the direction order is revoked in accordance with section 90 Section 84 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 84(1) replaced 7 June 2021 section 53(5) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 84(3) replaced 7 June 2021 section 53(6) Overseas Investment (Urgent Measures) Amendment Act 2020 Notification of call-in transactions Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
85: Military or dual-use technology and critical direct supplier call-in transactions
1: This section applies to a call-in transaction relating to a SIB that is—
a: a business that researches, develops, produces, or maintains military or dual-use technology; or
b: a critical direct supplier.
2: Each overseas person or associate making the overseas investment in SIB assets must notify the regulator before giving effect to the call-in transaction.
3: A call-in transaction must not be given effect to unless the Minister makes a direction order in relation to that transaction.
4: However, in the case of an overseas person or associate investing in an unpublished CDS,—
a: a notice under subsection (2) must be given before the date of giving effect to the call-in transaction or as soon as is reasonably practicable after the overseas person or associate receives a notice under section 20E
b: that person does not breach subsection (2) if the reason the person fails to give the notice is that the person had not received a notice under section 20E
5: A person who fails to comply with this section does not commit an offence under section 45 Section 85 replaced 7 June 2021 section 53(7) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 85(4)﻿(a) amended 5 July 2021 section 29(2) Overseas Investment Amendment Act 2021
86: Other call-in transactions
1: This section applies to a call-in transaction that is not a call-in transaction of a kind referred to in section 85
2: Any overseas person or associate making the overseas investment in SIB assets may notify the regulator of a call-in transaction at any time before the date set out in regulations. Section 86 replaced 7 June 2021 section 53(8) Overseas Investment (Urgent Measures) Amendment Act 2020
87: Requirements for notification of call-in transaction
1: The Minister must, by notice, authorise the manner in which a notification under section 85 86
a: specifying the required content of the notification, which may include any information that the Minister thinks relevant:
b: approving or prescribing 1 or more forms for the notification or 1 or more methods for making the notification (or both):
c: authorising the notification to be given on behalf of the overseas person or associate referred to in section 85(2) 86(2)
2: A notice under subsection (1) is secondary legislation ( see Part 3
3:
4: The regulator may, by notice in writing, require 1 or more persons giving a notification under section 85 86
5: For the purpose of considering the notification under section 85 86
6: A notification under section 85 86 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	publish it on an Internet site maintained by, or on behalf of, the regulator Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 87 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 87(1) amended 7 June 2021 section 53(9) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 87(1)﻿(c) amended 7 June 2021 section 53(10) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 87(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 87(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 87(4) amended 7 June 2021 section 53(9) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 87(5) amended 7 June 2021 section 53(9) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 87(6) amended 7 June 2021 section 53(9) Overseas Investment (Urgent Measures) Amendment Act 2020
2: Risk management actions
Subpart 2 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Direction orders Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
88: Direction orders
1: The Minister may give a direction order to a relevant acquirer, following a review of a call-in transaction, requiring compliance with the conditions of the order if the call-in transaction is or has been given effect to. Automatic condition: every direction order
2: It is a condition of every direction order, whether or not it is stated in the order, that the relevant acquirer must not, in relation to the SIB, act or omit to act with a purpose or an intention of adversely affecting national security or public order. Other conditions: to manage national security or public order risks
3: A direction order is subject to any other conditions (if any) that the Minister thinks appropriate to manage the risks to national security or public order posed by the transaction.
4: The Minister may impose other conditions only if the Minister considers that the call-in transaction gives rise, or is likely to give rise, to a significant risk to national security or public order.
5: When imposing other conditions, the Minister must have regard to New Zealand’s international obligations. Section 88 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 88(1) replaced 7 June 2021 section 53(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 88(2) heading inserted 7 June 2021 section 53(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 88(2) replaced 7 June 2021 section 53(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 88(3) heading inserted 7 June 2021 section 53(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 88(3) replaced 7 June 2021 section 53(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 88(4) replaced 7 June 2021 section 53(11) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 88(5) inserted 7 June 2021 section 53(11) Overseas Investment (Urgent Measures) Amendment Act 2020
89: Direction orders may be varied by agreement
1: A direction order may be varied by the Minister with the agreement of the relevant acquirer.
2: Any conditions of a direction order may be varied or added to by the Minister with the agreement of the relevant acquirer.
3: A condition of a direction order may be revoked by the Minister. Section 89 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
90: Revocation of direction order
The Minister may revoke a direction order if the Minister is satisfied that—
a: 1 or more of the following events or matters have occurred in connection with the direction order or the call-in transaction that the order relates to:
i: a notice under section 85 86 section 87(5)
ii: a notice under section 85 86 section 87(5)
iii: a person has breached a condition of a direction order:
iv: a person has contravened an enforceable undertaking ( see sections 46A to 46F
b: the event or matter gives rise, or is likely to give rise, to a risk referred to in section 81 Section 90 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 90(a)﻿(i) amended 7 June 2021 section 53(12) Overseas Investment (Urgent Measures) Amendment Act 2020 Section 90(a)﻿(ii) amended 7 June 2021 section 53(12) Overseas Investment (Urgent Measures) Amendment Act 2020
91: Interim direction orders
1: The Minister may give an interim order of the kind referred to in section 88
2: Sections 88(2), (3), and (5) 89
3: The Minister may impose conditions only if the Minister considers that the call-in transaction could give rise to a risk referred to in section 81
4: An interim direction order is in force until the earlier of—
a: the date specified in regulations; and
b: the date on which the Minister takes a risk management action in relation to the relevant call-in transaction.
5: The Minister may revoke an interim direction order at any time. Section 91 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 91(2) replaced 7 June 2021 section 53(13) Overseas Investment (Urgent Measures) Amendment Act 2020 Prohibition orders Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
92: Prohibition orders
1: The Minister may give a prohibition order to a relevant acquirer following a review of a call-in transaction, prohibiting the call-in transaction from being given effect to.
2: A prohibition order may—
a: specify any reasonable steps that must be taken in order to comply with the prohibition order:
b: require the person to report to the regulator within the time specified in the order stating how and when the order has been or will be implemented.
3: The Minister may give a prohibition order only if the Minister is satisfied on reasonable grounds that—
a: the call-in transaction gives rise, or is likely to give rise, to a risk referred to in section 81
b: the risk cannot be adequately managed by giving the relevant acquirer a direction order.
4: When acting under this section, the Minister must have regard to New Zealand’s international obligations.
5: A person who is given a prohibition order must comply with it. Section 92 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Disposal orders Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
93: Disposal orders
1: The Minister may give a disposal order to an overseas person, or an associate of an overseas person, who acquired sensitive assets under a transaction of national interest or a call-in transaction.
2: A disposal order may—
a: require disposal of the whole or any part of the sensitive assets owned by the person or their associate:
b: specify the time within which or manner in which the disposal must be made:
c: specify any reasonable steps that must be taken in order to comply with the disposal order:
d: require the person to report to the regulator within the time specified in the order stating how and when the order has been or will be implemented.
3: The Minister may give a disposal order to a person only if the Minister is satisfied on reasonable grounds that—
a: the transaction gives rise, or is likely to give rise, or has given rise to a risk referred to in section 81
b: the risk cannot be adequately managed by taking an enforcement action under subpart 5
4: See also section 112
5: The Minister must have regard to New Zealand’s international obligations when acting under this section.
6: A person who is given a disposal order must comply with it within the time, and in the manner, specified in the order. Section 93 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Statutory management Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
94: Purpose of statutory management
The purpose of statutory management under this subpart is to manage the risks to national security or public order associated with actions by an overseas person, or an associate of an overseas person, who has an interest in sensitive assets, including (without limitation) removing the overseas person’s, or their associate’s, access to or control over the sensitive assets. Section 94 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
95: Statutory management of person who owns sensitive assets and associates
1: The Governor-General may, by Order in Council, on the recommendation of the Minister,—
a: declare that a person who owns sensitive assets is subject to statutory management; and
b: declare that an associate of a person who owns sensitive assets is subject to statutory management; and
c: vest the assets identified in accordance with section 103
d: appoint 1 or more persons as statutory manager or statutory managers of the person for a specified period.
2: If an order is made under subsection (1),—
a: every subsidiary of a person declared to be subject to statutory management, except any subsidiary declared to be a subsidiary to which the order does not apply, is subject to statutory management; and
b: the appointment of a statutory manager for the specified period in respect of the person under statutory management also applies to those subsidiaries.
3: If the order appoints 2 or more persons as statutory managers,—
a: the order must state whether the powers of a statutory manager are to be exercised by those persons acting jointly or may be exercised individually; and
b: references in this Act to a statutory manager include references to the statutory managers.
4: In this section, a person Section 95 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
96: Recommendation of Minister
1: The Minister may make a recommendation under section 95
a: an overseas person, or an associate of the overseas person, acquired sensitive assets under a transaction of national interest or a call-in transaction; and
b: the Minister is satisfied on reasonable grounds that,—
i: in relation to the sensitive assets, the overseas person or their associate has acted, is acting, or is likely to act in a manner that gives or is likely to give rise to a significant risk to national security or public order; and
ii: the risk cannot be adequately managed by making a direction order (in the case of assets acquired under a call-in transaction), a disposal order, or taking an enforcement action under subpart 5
2: The Minister must have regard to New Zealand’s international obligations when acting under this section.
3: See also section 112 Section 96 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
97: Statutory management of New Zealand business only
Section 95 Section 97 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
98: Date and time of appointment
1: Every order made under section 95
2: The date and time specified must not be earlier than the date on which, and the time at which, the order is made.
3: If a question arises as to whether, on the date on which a statutory manager was appointed, an act was done or a transaction was entered into or effected before or after the appointment, the act or transaction must, in the absence of proof to the contrary, be treated as having been done, entered into, or effected, as the case may be, after the appointment of the statutory manager. Section 98 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
99: Considerations affecting exercise of powers by statutory manager
1: In exercising the powers conferred on them under this subpart, a statutory manager must have regard to—
a: the purpose of statutory management ( see section 94
b: to the extent not inconsistent with paragraph (a), the desirability of preserving the interests of members and creditors of the person under statutory management and the overseas person or, where appropriate, the need to protect the beneficiaries under any trust administered by the person under statutory management or the overseas person or the public interest; and
c: to the extent not inconsistent with paragraphs (a) and (b), the need to preserve the business or undertaking of the person under statutory management and the overseas person.
2: A statutory manager must, in relation to the statutory management,—
a: consult the regulator as and when required by the regulator; and
b: have regard to any advice given to the statutory manager by the regulator; and
c: comply with any directions given under section 100
d: provide any reports required under section 100
e: notify the regulator before taking an action under—
i: section 50(1) or (2) section 105(i)
ii: section 52(1) section 105(j)
iii: section 103
iv: section 104 Section 99 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
100: Role of regulator in statutory management
1: The regulator may, in relation to the conduct of the statutory management,—
a: give advice to the statutory manager; and
b: give written directions to the statutory manager; and
c: require a statutory manager to give to the regulator, or to other persons specified by the regulator, reports about the conduct of the statutory management and the state of the affairs or business of the person under statutory management.
2: A report required under subsection (1)﻿(c) must be given in the way, and within the period, required by the regulator.
3: When acting under this section, the regulator must have regard to—
a: the purpose of statutory management ( see section 94
b: New Zealand’s international obligations. Section 100 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
101: Statutory manager may form body corporate to acquire business of branch of persons not incorporated in New Zealand
1: If a person declared to be subject to statutory management is a body corporate incorporated outside New Zealand or an unincorporated body that has its head office or principal place of business outside New Zealand, the statutory manager may—
a: form and register a body corporate under the Companies Act 1993
b: subscribe for or acquire, as trustee for the person, all or any of the shares of the body corporate:
c: allot or issue all or any of the shares in the body corporate as fully or partly paid, as the case may be, up to the value of any property, rights, and assets vested in the body corporate under subsection (2) (after deducting the value of any liabilities so vested).
2: The Governor-General may, by Order in Council, on the recommendation of the Minister, declare that the whole or any part of any property, rights, assets, and liabilities of the person relating to its New Zealand business will vest in the body corporate referred to in subsection (1)﻿(a) on a date specified in the order (and the property, rights, assets, and liabilities vest in the body corporate on the date specified).
3: Nothing in subsection (2) reduces, extinguishes, or affects any obligation or liability of a person.
4: If a body corporate is formed under subsection (1)﻿(a),—
a: the body corporate is subject to statutory management under this subpart as if it had been declared to be so by an order under section 95
b: the body corporate has the same statutory manager as the person under statutory management; and
c: the provisions in this Act relating to statutory management apply (with any necessary modifications) as if the body corporate were a person under statutory management. Section 101 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
102: Body corporate formed and registered also subject to statutory management
If a body corporate is formed and registered under section 50(2)﻿(a) section 105(i)
a: the body corporate is subject to statutory management under this subpart as if it had been declared to be so by an order under section 95
b: the body corporate has the same statutory manager as the person under statutory management; and
c: the provisions in this Act relating to statutory management apply (with any necessary modifications) as if the body corporate were a person under statutory management. Section 102 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
103: Statutory manager may sell vested assets
1: This section applies to sensitive assets owned by any overseas person or their associate if—
a: the overseas person or their associate is acting in the manner described in section 96(1)﻿(b)
b: the order under section 95
2: The order may identify the whole or any part of the sensitive assets as assets to be vested in the statutory manager.
3: The order may identify the assets either individually or as a group or class.
4: The assets identified in the order are vested in the statutory manager on the date on which and time at which the order comes into force ( see section 98
5: The statutory manager may sell or otherwise dispose of the whole or any part of the vested assets to any person, on any terms and conditions, that the statutory manager considers appropriate.
6: The provisions of sections 51 72 section 50(1) Section 103 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
104: Statutory manager may terminate contracts or arrangements posing significant risk to national security or public order
1: If the statutory manager considers that a contract or an arrangement entered into by the person under statutory management gives rise, or is likely to give rise, to a significant risk to national security or public order, the statutory manager may cancel that contract or arrangement.
2: If a contract or an arrangement is cancelled under this section,—
a: the person under statutory management is discharged from the further performance of the contract or arrangement and from all liabilities for subsequent non-performance of the contract or arrangement; and
b: the other party to the contract or arrangement may apply to the court for compensation in respect of the contract or arrangement.
3: An application under subsection (2)﻿(b) must be made within 3 months of the person receiving notice of the cancellation.
4: The court may award any compensation that it considers just and reasonable, having regard to—
a: the value of the consideration provided by the person; and
b: all amounts and benefits that the person has received under the contract or arrangement; and
c: the conduct of the parties. Section 104 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
105: Application of Corporations (Investigation and Management) Act 1989
The following provisions of the Corporations (Investigation and Management) Act 1989
a: section 42
b: section 43
i: in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:
ii: in any other case, to a fine not exceeding $300,000:
c: section 44
d: section 45
e: section 46
f: section 47
g: section 48
h: section 49
i: sections 50 51 53 72 section 110
j: section 52
k: section 54
l: section 55 Companies Act 1993
m: section 58
n: section 59
o: section 61
p: section 64
q: section 66
r: section 67
s: section 68
i: in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:
ii: in any other case, to a fine not exceeding $300,000:
t: section 69
i: the reference to a person being guilty of an offence includes a person being liable to a civil pecuniary penalty under this Act:
ii: in relation to an offence, or to a liability to a civil pecuniary penalty, under this Act, the duty to report the matter to the Solicitor-General includes a duty also to report the matter to the regulator:
u: sections 71 71A Section 105 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
106: Termination of statutory management
1: The Governor-General may, by Order in Council, on the recommendation of the Minister, declare that a person under statutory management is to cease to be subject to statutory management.
2: The order must specify the date on which, and the time at which, it comes into force.
3: A person under statutory management ceases to be subject to statutory management if the person is put into liquidation on the application of the statutory manager. Section 106 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
107: Effect of termination of statutory management
1: If an order is made under section 106
a: the person under statutory management ceases to be subject to statutory management:
b: the appointment of the statutory manager terminates.
2: In subsection (1), specified time
a: the date and time specified in the order; or
b: the date and time of the liquidator’s appointment. Section 107 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
108: Powers to obtain documents and information
A statutory manager has, and may exercise, all of the powers conferred on a liquidator of a company by sections 261 to 267 section 373(3) Section 108 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
109: Protection from liability and indemnity
1: No statutory manager is liable for an act done or omitted to be done in the performance or exercise in good faith of the statutory manager’s functions, duties, or powers under this Act.
2: The Crown indemnifies the statutory manager for any liability that arises from the exercise or purported exercise of, or omission to exercise, any power conferred by this Act unless it is shown that the exercise or purported exercise of, or omission to exercise, the power was in bad faith.
3: Any money required for the purposes of this section must be paid out of a Crown Bank Account without further authority than this section.
4: The indemnity conferred by subsection (2) extends to legal costs incurred in defending a proceeding. Section 109 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
110: Expenses of statutory management
1: All costs, charges, and expenses properly incurred by a statutory manager in the exercise of the manager’s functions or powers under this subpart (including any remuneration approved by the Minister) are payable by the Crown.
2: The Crown is entitled to recover the amounts paid under subsection (1) from either of the following:
a: the proceeds of sale or other disposition of any vested assets:
b: the proceeds of sale or other disposition of the sensitive assets of the overseas person or their associate's (whether sold or disposed of as part of the sale of the business undertaking of the person under statutory management or otherwise).
3: Section 51 section 105(i) Section 110 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
111: Modifications where person under statutory management is regulated by Reserve Bank
1: This section applies if a person who will be made subject to statutory management by an order under section 95
a: a registered bank (within the meaning of section 2(1) Banking (Prudential Supervision) Act 1989
b: a covered bond SPV (within the meaning of section 139B Banking (Prudential Supervision) Act 1989
c: a licensed insurer (within the meaning of section 6(1)
d: a non-bank deposit taker (within the meaning of NBDT in section 5
e: an operator of a designated settlement system (within the meaning of section 156N Banking (Prudential Supervision) Act 1989
2: The Minister must consult the Reserve Bank before making a recommendation under section 96
3: Section 99(1)
a: the purpose of statutory management ( see section 94
b: the need to maintain public confidence in the operation and soundness of the financial system:
c: the need to avoid significant damage to the financial system:
d: to the extent not inconsistent with paragraphs (a), (b), and (c), the desirability of preserving the interests of members and creditors of the person under statutory management and the overseas person or, where appropriate, the need to protect the beneficiaries under any trust administered by the person under statutory management or the overseas person or the public interest:
e: to the extent not inconsistent with paragraphs (a), (b), (c), and (d), the need to preserve the business or undertaking of the person under statutory management and the overseas person.
4: The statutory manager must have regard to any advice given to the statutory manager by the Reserve Bank.
5: A notice under section 99(2)﻿(e)
6: Section 100
a: a direction under section 100(1)﻿(b)
b: section 100(3)
c: when making a joint direction, the Reserve Bank and the regulator must have regard to the matters set out in subsection (3)﻿(b) and (c).
7: A requirement for a report under section 100(1)﻿(c) Section 111 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 111(1)﻿(a) amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Section 111(1)﻿(b) amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Section 111(1)﻿(e) amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Risk management actions and transactions of national interest Heading inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
112: When risk management actions may be taken in connection with consented transactions of national interest
The Minister may only make a disposal order or a recommendation that a person be put into statutory management in connection with a transaction of national interest for which consent has been granted if the Minister is satisfied that—
a: 1 or more of the following events or matters have occurred in connection with the relevant consent or the transaction of national interest that the consent relates to:
i: an application under section 23 section 23(3)
ii: an application under section 23 section 23(3)
iii: a person has breached a condition of a consent:
iv: a person has contravened an enforceable undertaking ( see sections 46A to 46G
b: that the event or matter gives rise, or is likely to give rise,—
i: in the case of a disposal order, to a risk referred to in section 81
ii: in the case of a recommendation that a person be put into statutory management, to a significant risk to national security or public order. Section 112 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
3: Protection of classified information
Subpart 3 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
113: Application of subpart
This subpart applies to any civil proceedings (including public law and judicial review proceedings) in a court relating to the administration or enforcement of this Act. Section 113 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
114: Classified security information and other terms defined
1: In this subpart, classified security information
a: that is relevant to any proceedings in a court that relate to the administration or enforcement of this Act (or to any intended proceedings); and
b: that is held by an agency listed in section 126(2)
c: that the head of the agency, in the case of information held by an intelligence or security agency, or the Attorney-General, in the case of information held by any other agency, certifies in writing cannot be disclosed except to the extent provided in this subpart because, in the opinion of the head of the agency or the Attorney-General (as applicable),—
i: the information is information of a kind specified in subsection (2); and
ii: disclosure of the information would be disclosure of a kind specified in subsection (3).
2: Information falls within subsection (1)﻿(c)﻿(i) if it—
a: might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the agency; or
b: is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in relation to any of the functions of the agency; or
c: has been provided to the agency by the Government of another country or by an agency of the Government of another country or by an international organisation, and is information that cannot be disclosed by the agency because the Government or agency or organisation by which the information has been provided will not consent to the disclosure.
3: Disclosure of information falls within subsection (1)﻿(c)﻿(ii) if the disclosure would be likely—
a: to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or
b: to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the Government of another country or any agency of such a Government, or by any international organisation; or
c: to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or
d: to endanger the safety of any person.
4: In this subpart,— intended party section 117(1)﻿(a)﻿(i) intended proceedings section 117(1)﻿(a)﻿(ii) non-Crown party representative special advocate section 118(2) 2013 No 91 s 102 Section 114 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
115: Obligation to provide court with access to classified security information
1: The Crown must, after proceedings are commenced, provide the court with access to the classified security information that is relevant to those proceedings.
2: If a special advocate is appointed before proceedings are commenced, the Crown must provide the court with access to the classified security information that is relevant to the intended proceedings.
3: The court must keep confidential and must not disclose any information provided as classified security information, even if it considers that the information does not meet the criteria set out in section 114(2) and (3)
4: Subsection (3) applies both during and after completion of the proceedings. 2013 No 91 s 103 Section 115 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
116: Court orders
1: The court may, in order to comply with section 115(3)
a: an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in the proceedings:
b: an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of any witness or witnesses:
c: an order forbidding the publication of classified security information or information about classified security information:
d: an order excluding any person from the whole or any part of the court's proceedings, including—
i: the non-Crown party or the non-Crown party's representative; or
ii: staff of the court.
2: An order made under subsection (1)—
a: may be made for a limited period or permanently; and
b: if it is made for a limited period, may be renewed for a further period or periods by the court; and
c: if it is made permanently, may be reviewed by the court at any time. 2013 No 91 s 104 Section 116 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
117: Appointment of special advocate
1: This section applies if—
a: it appears to a court that—
i: a person (the intended party
ii: the intended party has notified the Crown that the party intends to commence those proceedings and that the party will apply for the appointment of a special advocate; or
b: proceedings have been commenced and information presented, or proposed to be presented, in those proceedings includes classified security information; or
c: proceedings have been commenced but the non-Crown party’s claim cannot be fully particularised without the non-Crown party being able to consider classified security information.
2: The court may, on the application of an intended party or a non-Crown party, appoint a barrister or solicitor as a special advocate to represent the intended party’s or the non-Crown party's interests on the terms that the court may direct if the court is satisfied that it is necessary to do so in order to ensure either or both of the following:
a: that the intended party can properly prepare and commence proceedings:
b: that a fair hearing will occur.
3: The court must, before appointing a person as a special advocate, be satisfied that the person—
a: holds an appropriate security clearance that allows the person to see information that is or may be classified security information; and
b: is suitably qualified and experienced to fulfil the role of a special advocate.
4: A special advocate appointed to represent an intended party may, after the proceedings are commenced, continue to act as the special advocate on behalf of that person (as a non-Crown party), subject to the terms that the court may direct.
5: The court may make directions as to the terms of the appointment, and on the matters referred to in sections 120 121(3)
6: The appointment of a special advocate does not create an obligation requiring the intended party to commence proceedings.
7: The agency to which the proceedings or intended proceedings relate must meet the actual and reasonable costs of a special advocate on a basis—
a: agreed between the special advocate and the head of the agency (in the case of an intelligence or security agency) or the Attorney-General (in the case of any other agency); or
b: determined by the court (in default of agreement). 2013 No 91 s 105 Section 117 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
118: Nomination of person for appointment
1: Each of the following may nominate a barrister or solicitor to be appointed as the special advocate:
a: the Crown:
b: the intended party or the non-Crown party (as the case may be).
2: The court may appoint a person nominated under subsection (1) or another person. 2013 No 91 s 106 Section 118 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
119: Role of special advocates
1: The role of a special advocate is to represent an intended party or a non-Crown party.
2: In particular, a special advocate may—
a: prepare and commence proceedings on behalf of the person:
b: examine and cross-examine witnesses:
c: make oral and written submissions to the court:
d: assist in the settlement of the proceedings.
3: At all times, a special advocate must act in accordance with his or her duties as an officer of the High Court.
4: A special advocate must keep confidential and must not disclose classified security information, except as expressly provided or authorised under this Act. 2013 No 91 s 107 Section 119 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
120: Court may provide access to classified security information to special advocate
1: A special advocate may, before or after the commencement of proceedings, apply to the court for access to the classified security information.
2: The court may provide access to the classified security information to the special advocate on the terms that the court may direct. 2013 No 91 s 108 Section 120 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
121: Communication between special advocate and other persons
1: A special advocate may communicate with the relevant party or the relevant party's representative on an unlimited basis until the special advocate has been provided with access to the classified security information.
2: After the special advocate has been given access to the classified security information, he or she must not communicate with any person about any matter connected with the classified security information except in accordance with this section.
3: A special advocate who, after having been given access to the classified security information, wishes to communicate with the relevant party, the relevant party's representative, or any other person not referred to in subsection (4) may do so on the terms that the court may direct.
4: A special advocate may, without the approval of the court, communicate about any matter connected with the classified security information with—
a: the court:
b: the Crown’s security-cleared representative:
c: the Attorney-General:
d: the head of the agency to which the proceedings relate, or the agency’s security-cleared representative.
5: In this section, relevant party 2013 No 91 s 109 Section 121 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
122: Protection of special advocates from liability
1: To the extent that a special advocate is acting in accordance with the requirements of this Act, the special advocate is not guilty of—
a: misconduct within the meaning of section 7 9
b: unsatisfactory conduct within the meaning of section 12
2: This subpart applies despite the requirements of any practice rules made and approved under the Lawyers and Conveyancers Act 2006
3: No person is personally liable for any act done or omitted to be done in good faith, in his or her capacity as a special advocate, in accordance with the requirements or provisions of this Act. 2013 No 91 s 110 Section 122 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
123: Other matters relating to procedure in proceedings involving classified security information
1: The court must determine the proceedings on the basis of information available to it (whether or not that information has been disclosed to or responded to by all parties to the proceedings).
2: If information presented, or proposed to be presented, in the proceedings by the Crown includes classified security information,—
a: except where proceedings are before the Court of Appeal or the Supreme Court, the proceedings must be heard and determined by the Chief High Court Judge, or by 1 or more Judges nominated by the Chief High Court Judge, or both; and
b: the court must, on a request by the Attorney-General and if satisfied that it is necessary to do so for the protection of (either all or part of) the classified security information, receive or hear (the relevant part or all of) the classified security information in the absence of all or any of—
i: the non-Crown party; and
ii: the barristers or solicitors (if any) representing the non-Crown party; and
iii: journalists; and
iv: members of the public.
3: Without limiting subsection (2),—
a: the court may approve a summary of the classified security information that is presented by the Attorney-General except to the extent that a summary of any particular part of the information would itself involve disclosure that would be likely to prejudice the interests referred to in section 114(3)
b: on being approved by the court, a copy of the summary must be given to the non-Crown party.
4: Subsections (1) to (3) apply despite any enactment or rule of law to the contrary. 2013 No 91 s 111 Section 123 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
124: Nothing in this subpart limits other rules of law that authorise or require withholding of document, etc
Nothing in this subpart limits section 27 2013 No 91 s 112 Section 124 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
125: Ancillary general practices and procedures to protect classified security information
1: Any general practices and procedures that may be necessary to implement the procedures specified in this subpart and to ensure that classified security information is protected in all proceedings to which this subpart applies must be agreed between the Chief Justice and the Attorney-General as soon as practicable after the commencement of this section, and revised from time to time.
2: General practices and procedures may be agreed under subsection (1) on the following matters:
a: measures relating to the physical protection of the information during all proceedings to which this subpart relates:
b: the manner in which the information may be provided to the court:
c: measures to preserve the integrity of the information until any appeals are withdrawn or finally determined.
3: Subsection (2) does not limit subsection (1). 2013 No 91 s 113 Section 125 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
4: Miscellaneous provisions
Subpart 4 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
126: Power to use and disclose information relevant to managing certain risks
1: Any agency identified in subsection (2) (a disclosing agency receiving agency
2: The agencies are—
a: an intelligence or security agency:
b: the Department of Internal Affairs:
c: the Department of the Prime Minister and Cabinet:
d: the Inland Revenue Department:
e: Land Information New Zealand:
f: the Ministry of Business, Innovation, and Employment:
g: the Ministry of Defence:
h: the Ministry of Foreign Affairs and Trade:
i: the New Zealand Customs Service:
j: the New Zealand Police:
k: New Zealand Trade and Enterprise:
l: the Reserve Bank:
m: the Treasury:
n: the regulator:
o: any other agency set out in regulations.
3: A receiving agency may use information that is disclosed in reliance on this section—
a: only for the purpose of, or in connection with, the management of national security and public order risks and, if the receiving agency is the New Zealand Security Intelligence Service or the Government Communications Security Bureau, for the performance of their functions; and
b: only in accordance with this section and the regulations (if any), despite anything to the contrary in any other enactment.
4: Before disclosing information in reliance on this section, a disclosing agency must impose conditions that the disclosing agency considers are needed to ensure that subsection (3) is complied with, including conditions relating to—
a: the storage and use of, or access to, anything provided:
b: the copying, returning, or disposing of copies of any documents provided.
5: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: prescribing agencies for the purposes of subsection (2)﻿(o):
b: governing the disclosure and use of information under this section, including—
i: the types of information that may be disclosed:
ii: the conditions that must be imposed when the information is disclosed.
6: The Minister must consult with the Privacy Commissioner before recommending that regulations be made under this section.
7: The Minister must, before making a recommendation that an agency be prescribed under subsection (2)﻿(o), be satisfied that it is necessary that information is able to be disclosed to that agency for the purpose of managing national security and public order risks.
8: This section applies despite anything to the contrary in any contract, deed, or document.
9: Subsection (1) does not limit a disclosing agency from using any other lawful means to disclose information (whether personal information or other information).
10: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 126 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 126(3) replaced 5 July 2021 section 30(1) Overseas Investment Amendment Act 2021 Section 126(9) inserted 5 July 2021 section 30(2) Overseas Investment Amendment Act 2021 Section 126(10) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
127: Regulations regarding transactions of national interest and overseas investments in SIB assets
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: prescribing classes of technology that are or are not military or dual-use technology:
b: prescribing classes of information that are not sensitive information:
c: prescribing classes of businesses that are or are not strategically important businesses:
d: prescribing classes of transactions that are not—
i: transactions of national interest:
ii: call-in transactions:
iii: overseas investments covered by the emergency notification regime:
iv: overseas investments in SIB assets:
e: prescribing a date for notification for the purposes of section 86
2: The Minister must have regard to New Zealand’s international obligations when making a recommendation relating to a regulation for the purposes set out in subsection (1)﻿(a) to (e).
3: The Minister must, before making a recommendation for the purpose set out in subsection (1)﻿(c) that applies in section 82
4: Regulations made under subsection (1)﻿(c) may prescribe a class of business using 1 or more of the following methods:
a: minimum criteria for a business to be a strategically important business (for example, minimum capacity of a generator):
b: the geographic area in which the business is located or provides services:
c: any other circumstances in which the business must operate.
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 127 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020 Section 127(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
128: Giving effect to and unwinding of call-in transactions
A call-in transaction that has been given effect to in contravention of section 85
a: is not an illegal contract for the purposes of subpart 5
b: is not void only because the transaction has been given effect to without a direction notice or because giving effect to the overseas investment in contravention of a prohibition order is an offence. Section 128 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020
129: Minister must publish decisions on call-in transactions and transaction of national interest
1: The Minister must publish, on an Internet site maintained by or for the regulator, notice of—
a: a decision about whether or not to decline consent to a transaction of national interest under section 20C
b: a decision to take a risk management action.
2: However, subsection (1)﻿(b) does not apply if the risk management action is a direction order referred to in section 88(1)﻿(a)
3: The notice must include a summary of the decision made and the reasons for that decision.
4: However, the Minister may defer or dispense with publication (in whole or in part) if the Minister is satisfied on reasonable grounds that good reason for withholding the publication would exist under the Official Information Act 1982 Section 129 inserted 16 June 2020 section 52 Overseas Investment (Urgent Measures) Amendment Act 2020