Māori Trustee Amendment Act 2009

1: Title
This Act is the Māori Trustee Amendment Act 2009.
2: Commencement
This Act comes into force on 1 July 2009.
3: Principal Act amended
This Act amends the Maori Trustee Act 1953 2009-07-01 Maori Trustee Act 1953
1: Amendments to principal Act
4: This Act to be read with Te Ture Whenua Maori Act 1993
1: Section 2 Interpretation
2: Section 2
3: Without limiting subsection (1), in this Act, unless the context otherwise requires,— Appropriation Account Common Fund General Purposes Fund Māori Trustee
a: means the Māori Trustee established by section 3
b: includes, as the context requires, the Māori Trustee who—
i: is appointed under section 6
ii: continues to hold office under section 6A
5: New headings and sections 3 to 6E substituted
The headings above sections 3 4 sections 3 to 6 Māori Trustee established
3: Māori Trustee established
1: This section establishes the Māori Trustee.
2: The Māori Trustee is a corporation sole with perpetual succession and a seal of office. Capacity, powers, and status of Māori Trustee
4: Capacity and powers of Māori Trustee
1: For the purpose of exercising the powers and performing the functions and duties of the Māori Trustee conferred by or under this Act or any other enactment, the Māori Trustee has—
a: full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction; and
b: for the purpose of paragraph (a), full rights, powers, and privileges.
2: Subsection (1) applies subject to—
a: the provisions of this Act and any other enactment; and
b: the general law.
5: Independence of Māori Trustee
In exercising the powers and performing the functions and duties of the Māori Trustee in his or her fiduciary capacity under this Act or any other enactment, the Māori Trustee must act independently, free from any direction or instruction from the Crown. Provisions relating to appointment of Māori Trustee
6: Appointment of Māori Trustee
1: The Māori Trustee is appointed by the Minister.
2: An appointment made under subsection (1) must be made by written notice to the person appointed.
3: The notice must—
a: state the date on which the appointment takes effect, which must not be earlier than the date on which the notice is received; and
b: state the period for which the appointment is made, which must not exceed a period of 5 years; and
c: be published by the Minister in the Gazette
4: The person appointed under this section—
a: may be reappointed; and
b: continues in office, despite the expiry of his or her term of office, until—
i: the person is reappointed; or
ii: the person’s successor is appointed; or
iii: the person ceases to be the Māori Trustee in a circumstance provided for in section 6B
6A: Continuation of appointment
Despite section 6 Māori Trustee Amendment Act 2009 section 6(3)
6B: Termination of appointment of Māori Trustee
1: The Māori Trustee ceases to hold office if he or she—
a: resigns from office by written notice to the Minister; or
b: is removed or suspended from office under subsection (2); or
c: ceases to hold office as the Māori Trustee under this Act.
2: The Minister may, if the Minister is satisfied that there is just cause, remove or suspend the Māori Trustee from office by written notice to the Māori Trustee, stating—
a: the date on which the removal or suspension takes effect, which must not be earlier than the date on which the notice is received; and
b: the reasons for the removal or suspension; and
c: in the case of a suspension from office,—
i: the date on which the person’s appointment will be reinstated; or
ii: the event upon which his or her reinstatement depends.
3: The Minister must notify the removal or suspension in the Gazette
4: The Māori Trustee is not entitled to receive compensation or other payment or benefit relating to his or her ceasing, for any reason, to hold office as the Māori Trustee.
5: In exercising his or her powers under this section, the Minister must observe the rules of natural justice.
6: In subsection (2), just cause
a: undischarged bankruptcy, misconduct, or neglect of duty; or
b: inability to perform the functions and duties of the Māori Trustee. Appointments by Māori Trustee
6C: Deputy Māori Trustee
1: The Māori Trustee must appoint a Deputy Māori Trustee.
2: The Deputy Māori Trustee is an employee of the Māori Trustee.
3: In the case of a vacancy in the office of the Māori Trustee, or if the Māori Trustee is unable to perform the functions and duties of the Māori Trustee under this Act or any other enactment, or is for any reason prevented from doing so, the Deputy Māori Trustee has and may exercise the powers and perform the functions and duties of the Māori Trustee for as long as the vacancy or absence continues.
4: The powers exercised, and functions and duties performed, by the Deputy Māori Trustee under subsection (3)
6D: Other employees
1: The Māori Trustee may appoint the employees that the Māori Trustee considers appropriate to enable the Māori Trustee to exercise the powers and perform the functions and duties of office under this Act effectively and efficiently.
2: The Governor-General may, by Order in Council, provide that the Māori Trustee must not, in relation to any or all employees (including the Deputy Māori Trustee), agree to terms and conditions of employment in a collective employment agreement, or an amendment to those terms and conditions, without—
a: consulting the State Services Commissioner; and
b: having regard to the recommendations that the State Services Commissioner may make to the Māori Trustee within a reasonable time of being consulted. Delegation
6E: Delegation by Māori Trustee
1: The Māori Trustee may delegate to the Deputy Māori Trustee any of the powers, functions, or duties conferred on the Māori Trustee by or under this Act or any other enactment.
2: Subject to any general or express directions of the Māori Trustee, the Deputy Māori Trustee has and may exercise all the powers, or perform the functions and duties, delegated by the Māori Trustee in the same manner and with the same effect as if they had been conferred on the Deputy Māori Trustee directly by or under this Act or any other enactment.
3: A delegation under this section—
a: must be in writing; and
b: is revocable in writing at any time; and
c: may be made subject to any restrictions or conditions that the Māori Trustee thinks fit; and
d: does not prevent the exercise of a power or performance of a function or duty by the Māori Trustee; but
e: does not include a power of delegation.
4: In the absence of proof to the contrary, the Deputy Māori Trustee, when purporting to act under a delegation, is presumed to be acting in accordance with the terms of the delegation.
5: Powers exercised, functions or duties performed, and decisions made by the Deputy Māori Trustee, acting as the delegate of the Māori Trustee, may not be questioned in any proceeding on the ground that the occasion for the Deputy Māori Trustee to act had not arisen or had ceased.
6: New heading inserted
The following heading is inserted above section 7 Further provisions relating to powers and functions of Māori Trustee
7: Māori Trustee’s Account
Section 17
4: Money may be paid out of the Appropriation Account in the Māori Trustee’s Account for the purposes that are agreed to from time to time between the Māori Trustee and the Crown.
8: Section 19 repealed
Section 19
9: Section 21 repealed
Section 21
10: Accounts within Māori Trustee’s Account
1: Section 23(1)
h: the Appropriation Account.
2: Section 23
5A: All money received by way of Crown appropriation must be credited to the Appropriation Account in the Māori Trustee’s Account.
11: New sections 26 to 26B substituted
Section 26
26: Money held in Common Fund invested in Fund
1: All money held in trust in the Common Fund is invested in that fund, and any income derived from investment of the money forms part of the Common Fund.
2: Unless an exception is provided for in regulations made under section 52(a)(i) section 52(a)(ii)
3: Distributable income payable under subsection (2) must be calculated in accordance with the following formula: a − b = c where— a is the total amount of money received by the Māori Trustee as income, including amounts properly determined to be realised capital gains less capital losses, from the money held by the Māori Trustee in trust in the Common Fund b is the total amount of the management fees that the Māori Trustee is entitled to charge or retain under section 26A c is the amount of distributable income that must be paid annually under subsection (2), which must be apportioned in accordance with regulations made under section 52(b)
4: The Māori Trustee must review, on a quarterly basis, the extent to which the distributable income payable under subsection (2) is commensurate with fair market distributable income paid for the relevant quarter, relative to funds that are—
a: comparable in size to those held in trust in the Common Fund; and
b: subject to conditions comparable to the conditions applying to the Common Fund.
5: On and from the date that is 6 months after the commencement of the Māori Trustee Amendment Act 2009
26A: Management fees
The Māori Trustee may charge or retain a management fee, calculated in accordance with regulations made under section 52(c)
26B: Disclosure requirements
1: The Māori Trustee must report to account holders on the matters and in the manner prescribed by regulations made under section 52(d)
a: the amount of distributable income payable in respect of each account; and
b: the management fee charged or retained under section 26A
c: the net amount of distributable income to be paid; and
d: such other matters that the Māori Trustee considers necessary or desirable.
2: The annual report of the Māori Trustee must include a report on the total amount of distributable income, less management fees charged or retained, paid on money held in trust in the Common Fund.
12: Investment of Common Fund
Section 28
3: On and from the date that is 6 months after the commencement of the Māori Trustee Amendment Act 2009
13: Section 41 repealed
Section 41
14: New section 52 substituted
Section 52
52: Regulations
The Governor-General may, by Order in Council, on the recommendation of the Minister of Māori Affairs, make regulations—
a: for the purpose of section 26(2)
i: defining any special circumstances or cases in which the Māori Trustee, though required to credit distributable income to an account, is not required to pay distributable income under that section, including, without limitation, prescribing the sum of money below which the Māori Trustee is not required to make a distributable income payment:
ii: setting out how and to whom distributable income is to be paid:
b: for the purpose of section 26(3)
c: for the purpose of section 26A
d: for the purpose of section 26B(1)
e: for other purposes expressly provided for in this Act:
f: prescribing any other matters contemplated by this Act or necessary for its administration or to give it full effect.
15: Section 53 repealed
Section 53
2: Transitional provisions and consequential amendments
Transitional matters
16: Interpretation
In this section and sections 17 to 30 document section 4(1) existing undertaking
a: means—
i: all property and estates administered, held, managed, or controlled by the Maori Trustee or the Maori Trust Office before the commencement of this Act, including the funds and accounts within the Māori Trustee’s Account, as provided for in section 23
ii: all rights and liabilities of the Maori Trustee and the Maori Trust Office before the commencement of this Act; and
b: includes any reserves of the Maori Trustee or Maori Trust Office in existence before the commencement of this Act fiduciary rights and liabilities liabilities Maori Trust Office new Māori Trustee section 3 old Maori Trustee
17: New Māori Trustee succeeds to existing undertaking
On and from the commencement of this Act, the new Māori Trustee succeeds to—
a: the existing undertaking, which is binding on the new Māori Trustee; and
b: the fiduciary rights and liabilities, which bind the new Māori Trustee.
18: Dissolution of Maori Trust Office
On and from the commencement of this Act, the Maori Trust Office is dissolved.
19: Contracts and other instruments
1: A reference (express or implied) to the old Maori Trustee or the Maori Trust Office in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement of this Act must be read as a reference to the new Māori Trustee.
2: A reference (express or implied) to an officer of the Maori Trust Office in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement of this Act must be read as a reference to the corresponding employee of the new Māori Trustee, or if there is no corresponding employee, to another appropriate employee of the new Māori Trustee.
3: Contracts, agreements, conveyances, deeds, leases, licences, and other instruments, undertakings, and notices (whether in writing or not), entered into by, made with, given to or by, or addressed to the old Maori Trustee or the Maori Trust Office (whether alone or with another person) before the commencement of this Act and having effect immediately before that date ( contracts and other instruments
4: The contracts and other instruments referred to in subsection (3) are binding on, and enforceable by, against, or in favour of, the new Māori Trustee as if the new Māori Trustee, rather than the old Maori Trustee, the Maori Trust Office, or the chief executive of Te Puni Kōkiri had been the person or entity by whom they were entered into, with whom they were made, or to or by whom they were given or addressed.
20: Status of existing securities
1: A security held by the old Maori Trustee or the Maori Trust Office as security for a debt or other liability to the old Maori Trustee or the Maori Trust Office incurred before the commencement of this Act—
a: is available to the new Māori Trustee as security for the discharge of that debt or liability; and
b: if the security extends to future or prospective debts or liabilities, is available as security for the discharge of debts or liabilities to the new Māori Trustee incurred on or after the commencement of this Act.
2: The new Māori Trustee is entitled to the same rights and priorities, and is subject to the same liabilities, in relation to the security as the old Maori Trustee or the Maori Trust Office would be if this Act had not been passed.
21: Continuation of proceedings
1: An action, arbitration, proceeding, or cause of action that was pending or that existed by, against, or in favour of the old Maori Trustee or the Maori Trust Office, or to which the old Maori Trustee or the Maori Trust Office was a party, before the commencement of this Act may be continued and enforced by, against, or in favour of the new Māori Trustee.
2: It is not necessary to amend a pleading, writ, or other document to continue the action, arbitration, proceeding, or other cause of action.
22: Effect of Act
1: Nothing done or authorised by this Act—
a: places the old Maori Trustee, the Maori Trust Office, the new Māori Trustee, or any other person in breach of contract or confidence, or makes any of them liable for a civil wrong; or
b: entitles a person to terminate or cancel a contract or arrangement, or to accelerate the performance of an obligation, or to impose a penalty or increased charge; or
c: places the old Maori Trustee, the Maori Trust Office, the new Māori Trustee, or any other person in breach of an enactment, a rule of law, or a provision of a contract that prohibits, restricts, or regulates the assignment or transfer of property or the disclosure of information; or
d: releases a surety from an obligation; or
e: invalidates or discharges a contract or surety.
2: A document, matter, or thing that would have been admissible in evidence for or against the old Maori Trustee or the Maori Trust Office is, on and after the commencement of this Act, admissible in evidence for or against the new Māori Trustee.
23: Registers
1: A Registrar of Deeds, the Registrar-General of Land, or any other person charged with keeping books or registers is not required to change the name of the old Maori Trustee or the Maori Trust Office to the new Māori Trustee in the books or registers, or in a document, solely because of the provisions of this Act.
2: If the new Māori Trustee presents an instrument referred to in subsection (3) to a registrar or other person, the presentation of that instrument by the new Māori Trustee is, in the absence of proof to the contrary, sufficient evidence that the property is vested in the new Māori Trustee.
3: For the purposes of this section, the instrument need not be an instrument of transfer, but must—
a: be executed, or purport to be executed, by the new Māori Trustee; and
b: relate to property held by the old Maori Trustee or the Maori Trust Office immediately before the commencement of this Act; and
c: be accompanied by a certificate by the new Māori Trustee that the property became vested in the new Māori Trustee by virtue of the provisions of this Act.
24: Transfer of employees
1: On and from the commencement of this Act, every person employed in the Maori Trust Office immediately before that date ceases to be employed in the Maori Trust Office and becomes an employee of the new Māori Trustee ( transferred employee
2: However, subsection (1) does not apply to the old Maori Trustee in his capacity as the general manager of the Maori Trust Office immediately before the commencement of this Act and the old Maori Trustee is not entitled to compensation or other payment or benefit relating to his ceasing to be the general manager of the Maori Trust Office.
25: Protection of employment conditions
1: In the case of a transferred employee who, immediately before the commencement of this Act, is employed on an individual employment agreement, the transferred employee must be employed by the new Māori Trustee on terms and conditions no less favourable than those applying to that employee immediately before the commencement of this Act.
2: Transferred employees who, immediately before the commencement of this Act, are employed under a collective employment agreement are, on and after the commencement of this Act, employed by the new Māori Trustee on a collective employment agreement with terms and conditions no less favourable than those on which those employees were employed immediately before the commencement of this Act.
3: Subsections (1) and (2)—
a: continue to apply to the terms and conditions of employment of a transferred employee until those terms and conditions are varied by agreement between the transferred employee (or his or her representative) and the new Māori Trustee; but
b: do not apply to a transferred employee who receives any subsequent appointment with the new Māori Trustee.
26: Continuity of employment
For the purposes of every enactment, law, contract, and agreement relating to the employment of a transferred employee,—
a: the contract of employment of that person applying immediately before the commencement of this Act in respect of that person’s employment in the Maori Trust Office is to be treated as having been unbroken; and
b: a reference to the chief executive of Te Puni Kōkiri in the contract of employment of a transferred employee must be read as a reference to the new Māori Trustee; and
c: the person’s period of service in the Maori Trust Office is to be treated as a period of service with the new Māori Trustee under this Act.
27: No compensation for redundancy
A transferred employee is not entitled to compensation for redundancy by reason only of the person ceasing to be an employee in the Maori Trust Office.
28: Membership of Government Superannuation Fund
1: If a transferred employee was a contributor to the Government Superannuation Fund under the Government Superannuation Fund Act 1956
a: that person is to be regarded, for the purposes of the Government Superannuation Fund Act 1956
b: the Government Superannuation Fund Act 1956
2: For the purposes of this section, subsection (1) applies to the new Māori Trustee as if the new Māori Trustee were a transferred employee. Taxation and other duties
29: Taxes and duties
1: This section applies for the purposes of the Inland Revenue Acts and any other enactment that imposes or provides for the collection of any tax, duty, levy, rate, or other charge.
2: On and from the commencement of this Act,—
a: the old Maori Trustee and the new Māori Trustee are to be treated as the same person; and
b: all transactions entered into by, and all acts of, the old Maori Trustee before the commencement of this Act are to be treated as having been entered into or performed by the new Māori Trustee on the date on which they were entered into or performed by the old Maori Trustee.
3: In this section, Inland Revenue Acts section 3(1) Section 29(3) amended 8 December 2009 section 165 Taxation (Consequential Rate Alignment and Remedial Matters) Act 2009 Consequential and other amendments
30: Enactments amended
1: The enactments listed in the Schedule
2: On and from the commencement of this Act, except as expressly provided or unless the context otherwise requires, every reference in any enactment or document to—
a: the Maori Trustee must be read as a reference to the Māori Trustee, as defined in section 2(3)
b: the Maori Trust Office must be read as a reference to the Māori Trustee, as defined in section 2(3) 2009-07-01 Administration Act 1969 Crown Proceedings Act 1950 Insolvency Act 2006 Maori Affairs Restructuring Act 1989 Maori Community Development Act 1962 Maori Housing Act 1935 Maori Purposes Act 1954 Maori Reserved Land Act 1955 Maori Soldiers Trust Act 1957 Maori Vested Lands Administration Act 1954 Mining Tenures Registration Act 1962 Official Information Act 1982 Ombudsmen Act 1975 Protection of Personal and Property Rights Act 1988 Public Audit Act 2001 Public Finance Act 1989 Queen Elizabeth the Second Postgraduate Fellowship of New Zealand Act 1963 Remuneration Authority Act 1977 Te Ture Whenua Maori Act 1993 Trustee Act 1956