Overseas Investment Amendment Act 2018

1: Title
This Act is the Overseas Investment Amendment Act 2018.
2: Commencement
1: Section 48 section 80 clause 6 Schedule 1AA
2: The rest of this Act comes into force on the date appointed by the Governor-General by Order in Council, and 1 or more orders may be made bringing different provisions into force on different dates and appointing different dates for different purposes.
3: To the extent that it is not earlier brought into force, this Act comes into force immediately after the expiry of the 2-month period that starts on the date of Royal assent.
4: In this section, provision
3: Principal Act
This Act amends the Overseas Investment Act 2005 principal Act 2018-09-05 Overseas Investment Act 2005 s 2(1): s 48 ‘comes into force on the expiry of the 2-week period that starts on the date of Royal assent’ 2018-10-22 Overseas Investment Act 2005 s 2(3): rest of Act ‘immediately after the expiry of the 2-month period that starts on the date of Royal assent’ — nb as per 2(2), provisions may additionally come into force before 22 Oct
1: Sensitive land
1: Residential land
4: Section 6 amended (Interpretation)
In section 6(1) district valuation roll 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)
5: Schedule 1 amended
1: In Schedule 1 The following table is small in size and has 2 columns. This table amends table 1 of Schedule 1 of the Overseas Investment Act 2005 and should be read with that table to provide understanding of the context. residential land —
2: In Schedule 1 section 67(4) 68(4) The following table is small in size and has 2 columns. This table amends table 1 of Schedule 1 of the Overseas Investment Act 2005 and should be read with that table to provide understanding of the context. land that is set apart as Māori reservation and that is wahi tapu under section 338 of Te Ture Whenua Maori Act 1993 0.4 hectares
3: In Schedule 1 section 67(4) 68(4) The following table is small in size and has 2 columns. This table amends table 2 of Schedule 1 of the Overseas Investment Act 2005 and should be read with that table to provide understanding of the context. land over 0.4 hectares that is set apart as Māori reservation and that is wahi tapu under section 338 of Te Ture Whenua Maori Act 1993 0.4 hectares
2: Forestry rights and other
profits à prendre
6: Section 6 amended (Interpretation)
1: In section 6(1) exempted interest exempted interest
a: an easement; or
b: a profit à prendre profit à prendre
2: In section 6(1) forestry right
a: a right created in accordance with the Forestry Rights Registration Act 1983; or
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 paragraph (b) profit à prendre 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) of the Crown Minerals Act 1991); or
ii: is within a class set out in regulations as a class of profits à prendre profits à prendre
2: Amendments relating to consent and conditions regime for overseas investments in sensitive New Zealand assets
7: Section 4 amended (Overview)
1: In section 4(1)﻿(b)﻿(iv) monitoring information-gathering
2: In section 4(1)﻿(b)﻿(vii) enactments (and see also Schedule 1AA
8: Section 6 amended (Interpretation)
1: In section 6(1) benefit to New Zealand test section 16A commitment to reside in New Zealand test Part 2 Schedule 2 excluded accommodation facility
a: a hospital; or
b: any premises used, or intended to be used, in the course of business principally for providing temporary lodging to the public; or
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 exemption certificate clause 4 of Schedule 3 incidental residential use test clause 14 Schedule 2 increased housing test clause 11 Schedule 2 investor test section 16(2) long-term accommodation facility
a: means—
i: a retirement village or rest home; or
ii: a hostel within the meaning of section 2 of the Education Act 1989, or other facility used or intended to be used to provide accommodation to students in accordance with the requirements of section 5B of the Residential Tenancies Act 1986; but
b: does not include any facility to the extent that it is, or is part of, an excluded accommodation facility non-occupation outcome clause 17 of Schedule 2 non-residential use test clause 13 Schedule 2 residential (but not otherwise sensitive) land
a: is or includes residential land; but
b: is not otherwise sensitive under Part 1 of Schedule 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 security arrangement sensitive (but not residential) land
a: is not and does not include residential land; but
b: is sensitive under Part 1 of Schedule 1 for some other reason
2: In section 6(1) conveyancing services involved subsection (7)
3: In section 6(1) farm land means land (other than residential (but not otherwise sensitive) land)
4: Replace section 6(2)
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; and
ii: has been residing in New Zealand for at least the immediately preceding 12 months; and
iii: is tax resident in New Zealand; and
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; and
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
5: After section 6(2)
2A: In subsection (2)﻿(a)﻿(iii) tax resident in New Zealand
6: In section 6(3) subsection (2)﻿(b)﻿(ii) subsection (2)﻿(b)﻿(ii)﻿(B)
7: After section 6(6)
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) see
9: Section 7 amended (Who are overseas persons)
In section 7(1) resident ordinarily resident in New Zealand
10: New sections 8A and 8B and cross-heading inserted
After section 8
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. Transitional, savings, and related provisions
8B: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA
11: New section 11A inserted (Exemptions from requirement for consent)
After section 11
11A: Exemptions from requirement for consent
1: The exemptions from the requirement for consent in Schedule 3
2: See also
12: Section 16 amended (Criteria for consent for overseas investments in sensitive land)
1: Replace section 16(1)﻿(a) to (e)
a: the investor test is met (unless the overseas investment is exempt from this criterion under subsection (3)
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:
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:
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:
e: if the relevant land is not described in paragraphs (b) to (d)
2: Replace section 16(2)
2: For the purposes of this section, the investor test is met if the relevant Ministers are satisfied that—
a: the relevant overseas person has, or (if that person is not an individual) the individuals with control of the relevant overseas person collectively have, business experience and acumen relevant to that overseas investment; and
b: the relevant overseas person has demonstrated financial commitment to the overseas investment; and
c: the relevant overseas person is, or (if that person is not an individual) all the individuals with control of the relevant overseas person are, of good character; and
d: the relevant overseas person is not, or (if that person is not an individual) each individual with control of the relevant overseas person is not, an individual of a kind referred to in section 15 or 16 of the Immigration Act 2009 (which sections list certain persons not eligible for visas or entry permission under that Act).
3: Subsection (1)﻿(a)
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) of Schedule 3
iii: the interest in land relates to 1 or more new residential dwellings in that development; and
iv: the transaction is entered into before the construction of the dwelling is complete.
4: See also clause 4(5) of Schedule 2
5: See subsection (2)﻿(c) and (d)
13: New sections 16A to 16C inserted
After section 16
16A: Benefit to New Zealand test
General test
1: The benefit to New Zealand test is met if all 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), as determined by the relevant Ministers under section 17; and
b: if the relevant land is or includes non-urban land that, in area (either alone or together with any associated land) exceeds 5 hectares, the relevant Ministers determine that that benefit will be, or is likely to be, substantial and identifiable; and
c: 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
2: Subsection (3)
a: that the relevant land will be, or is likely 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 relevant land will not be, or is not likely to be, used, or held for future use, for any residential purposes, except where—
i: accommodation is being provided for the purpose only of supporting forestry activities being carried out on the relevant land; and
ii: all buildings being used for that accommodation are located on land on which some or all of those forestry activities are being carried out or on land that adjoins land on which some or all of those forestry activities are being carried out; and
d: 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)
3: For the purposes of subsection (1)﻿(a) and (b)
a: the overseas investment is not given effect to; and
b: there were to be no future changes to the ownership or control (direct or indirect) of—
i: interests in the relevant land; or
ii: rights or interests in securities of persons who own or control (directly or indirectly) interests in the relevant land. 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 will be, or is likely 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 relevant land will not be, or is not likely to be, used, or held for future use, for any residential purposes, except where—
i: accommodation is being provided for the purpose only of supporting forestry activities being carried out on the relevant land; and
ii: all buildings being used for that accommodation are located on land on which some or all of those forestry activities are being carried out or on land that adjoins land on which some or all of those forestry activities are being carried out; and
d: that any requirements set out in regulations in accordance with subsection (5) subsection (8)
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)
f: if the relevant land is or includes special land and regulations require the special land, or any part of it, to be offered to the Crown, that the special land, or the part of it, has been offered to the Crown in accordance with regulations; and
g: that any other requirements set out in regulations are met.
5: Regulations may, for the purposes of subsection (4)﻿(d)
6: Requirements set out in regulations for the purposes of subsection (4)﻿(d)
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)﻿(d) or (4)﻿(e)
b: to modify the requirement set out in subsection (2)﻿(d) or (4)﻿(e)
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) Definitions
9: In this section,— adjoins forestry activities
a: maintaining a crop of trees:
b: harvesting a crop of trees:
c: establishing a crop of trees special land
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 where section 16A(3) section 16A(4) see section 16C
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 of Schedule 2
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)﻿(c) 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
16C: Conditions for consents relating to sensitive land that will be used for forestry activities
1: Subsection (2) section 16A(3)
2: 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(2)﻿(a) and (c)
b: the requirement set out in section 16A(2)﻿(d) section 16A(7)
3: Subsection (4) 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)﻿(d) or (4)﻿(e)
14: Section 17 amended (Factors for assessing benefit of overseas investments in sensitive land)
1: In section 17(1) If section 16(1)﻿(e)﻿(ii) applies For the purposes of section 16A(1)﻿(a) (b) section 16A(3)
2: In section 17(1)﻿(b) section 16(1)﻿(e)﻿(ii) and (iii) section 16A(1)﻿(a) (b) section 16A(3)
15: Section 19 amended (Applying good character and Immigration Act 2009 criteria)
1: In section 19(1) sections 16(1)﻿(c) sections 16(2)﻿(c)
2: In section 19(2) sections 16(1)﻿(d) sections 16(2)﻿(d)
16: New section 23A inserted (Applications for standing consent in advance of transaction)
After section 23
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), subject to Schedule 4
17: Section 25 amended (Granting or refusal of consent)
Repeal section 25(1)﻿(c)
18: New sections 25A and 25B inserted
After section 25
25A: Conditions of consent
1: A consent granted under this Act may, in addition to the automatic conditions in section 25B
2: Nothing in this Act limits the discretion of the relevant Minister or Ministers under subsection (1)
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).
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.
19: Section 27 amended (Consent may be varied by agreement)
After section 27(3)
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).
20: New section 27A inserted (Consent holder may apply for new consent)
After section 27
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; and
b: may grant the new consent if satisfied that all of the applicable criteria are met.
5: Despite subsection (3)
a: assess the benefit to New Zealand (or any part of it or group of New Zealanders) by comparing the expected result of the overseas investment from the date on which the overseas investment was actually given effect to:
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)
b: if later, the date after the date on which the new consent is granted.
21: Section 28 repealed (Conditions of consent)
Repeal section 28
22: Section 31 amended (What regulator does)
After section 31(h)
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:
23: Section 34 amended (Ministerial directive letter)
After section 34(3)﻿(b)
ba: conditions of consent, including conditions that this Act requires be imposed:
24: Section 62 amended (Foreshore, seabed, riverbed, or lakebed acquired by the Crown under consent process is not subdivision)
In section 62(a) section 17(2)﻿(f) section 16A(4)﻿(f)
25: Sections 73 to 75 and cross-headings repealed
Repeal sections 73 to 75
26: Schedule 2 replaced
Replace Schedule 2 Schedule 2 Schedule 2
27: New Schedule 3 inserted
After Schedule 2 Schedule 3 Schedule 3
28: New Schedule 4 inserted
After Schedule 3 section 27 Schedule 4 Schedule 4
29: Amendments to regulations
Amend the Overseas Investment Regulations 2005 Schedule 5 2018-10-22 Overseas Investment Regulations 2005 s 2(3): rest of Act ‘immediately after the expiry of the 2-month period that starts on the date of Royal assent’ — nb as per 2(2), provisions may additionally come into force before 22 Oct
3: Enforcement and other miscellaneous matters
1: Amendments relating to enforcement
30: Subpart 4 heading in Part 2 replaced
In Part 2, replace the subpart 4
4: Information-gathering powers
31: Section 38 replaced (Regulator may require consent holder to provide information for monitoring purposes)
Replace section 38
38: Regulator may require person who is subject to condition to provide information for monitoring purposes
1: For the purpose of monitoring compliance with the conditions of a consent, an exemption, or an exemption certificate, 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.
32: Section 39 amended (Regulator may require any person to provide information for statistical or monitoring purposes)
1: Replace section 39(1)﻿(b)
b: monitoring compliance with a condition or conditions of a consent, an exemption, or an exemption certificate.
2: In section 39(2)﻿(a) within the time , and in the manner,
33: Section 40 replaced (Regulator may require consent holder to provide statutory declaration as to compliance)
Replace section 40
40: Regulator may require person who is subject to condition to provide statutory declaration as to compliance
1: The regulator may, by notice in writing, require a person ( A
a: the extent to which A has complied with the condition or conditions; and
b: if A is in breach of a condition or conditions, 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.
34: Section 41 amended (Regulator may require information and documents for purpose of detecting offences)
1: In the heading to section 41 for purpose of detecting offences to be provided for purpose of monitoring compliance, investigating, and enforcing Act and regulations
2: Replace section 41(1)
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) 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):
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).
3: In section 41(2) within the time , and in the manner,
4: Repeal section 41(3)
5: After section 41(4)
5: Sections 38 to 40 do not limit this section.
35: New sections 41A to 41E inserted
After section 41
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
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, until a final decision in relation to the proceeding is given,—
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)
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)
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
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, that the exercise of any powers conferred by any of those sections is unlawful.
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 of the Evidence Act 2006:
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
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 1993. 2011 No 5 s 59
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)
a: maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 1993):
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
36: New sections 41F and 41G and cross-heading inserted
In Part 2, after the subpart 5 Disposal of property
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) 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)
b: complies with subsection (2)﻿(b)
6: This section does not limit any other power that the regulator has.
7: In this section and section 41G property
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)
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) subsection (1)
4: See also
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
37: Section 46 amended (Offence of false or misleading statement or omission)
1: In section 46(1) false or misleading statement statement that is false or misleading in a material particular
2: After section 46(1)﻿(a)
aa: any statement made under section 51A
3: In section 46(2) misleading in a material particular
38: Section 48 amended (Court may order person in breach to pay civil penalty)
1: In the heading to section 48 breach or involved in breach
2: Replace section 48(1)﻿(d)
d: failed to comply with a condition of a consent, an exemption, or an exemption certificate; or
3: After section 48(1)﻿(d)
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)
4: In section 48(2)﻿(b) any quantifiable gain 3 times the amount of
5: In section 48(2)﻿(b) or exemption , exemption, or exemption certificate
6: After section 48(2)
2A: However, in the case of a contravention of section 51C
39: New section 48A inserted (Defences for person involved in contravention, offence, or failure)
After section 48
48A: Defences for person involved in contravention, offence, or failure
1: This section applies if—
a: a person ( A
b: another person ( B
2: In any proceeding under section 48 against B for involvement in the contravention, the commission of the offence, or the failure, it is a defence if B proves that—
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) (as the case may be).
3: In subsection (2)﻿(a) another person 2013 No 69 s 503
40: Section 49 amended (Court may order mortgage to be registered over land)
1: In section 49(1) a consent or an exemption a consent, an exemption, or an exemption certificate
2: In section 49(1)﻿(a) condition of the consent condition of the consent, the exemption, or the exemption certificate
41: Section 50 amended (Court may order interest to be paid)
In section 50(1) a condition of a consent a condition of a consent, an exemption, or an exemption certificate
42: Section 51 replaced (Court may order consent holder to comply with condition of consent or exemption)
Replace section 51
51: Court may order compliance with condition of consent, exemption, or exemption certificate
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.
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, or an exemption certificate:
b: order a person in breach of a condition of a consent, an exemption, or an exemption certificate to comply with it.
43: New sections 51A to 51C and cross-heading inserted
After section 51 Statement relating to compliance with consent requirement
51A: Person who acquires interest in residential land must make and provide statement
1: This section applies if—
a: a person ( A
b: the interest acquired is a freehold estate or a lease, or any other interest, for a term of 3 years or more (including rights of renewal, whether of the grantor or grantee), but excluding an interest under a mortgage, an interest under any other security arrangement, or an exempted interest; and
c: an instrument recording A’s acquisition of the 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; or
b: by C acting in a manner authorised by the regulator in a notice under section 51B
7: In this section and sections 51B and 51C conveyancer lodged
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 regulator must—
a: notify the making of the notice in the Gazette
b: publish the notice on an Internet site maintained by, or on behalf of, the regulator.
3: The notice is a disallowable instrument but not a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
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)﻿(c)
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
44: Section 52 amended (Administrative penalties for late filing)
In section 52(1) a condition of a consent or of an exemption a condition of a consent, an exemption, or an exemption certificate
45: Sections 54 and 55 and cross-heading replaced
Replace sections 54 55 Giving, providing, or serving notices or documents
54: Address for service
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.
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, or 41; or
d: failed to comply with a condition of a consent, an exemption, or an exemption certificate.
3: Subsection (1)﻿(b)﻿(iv)
4: This section applies despite any other rule or law.
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
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
2: Miscellaneous provisions
46: Section 61 amended (Regulations)
1: Before section 61(1)﻿(a)
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
2: After section 61(1)﻿(b)
ba: making provision referred to in section 16A(4) see paragraphs (c) and (ca)
3: Replace section 61(1)﻿(c)
c: setting out what must be done to make an offer to the Crown count for the purposes of section 16A(4)﻿(f)
i: a maximum or minimum period for which an offer must be open:
ii: the maximum price at which the land may be offered, and a valuation procedure for fixing that maximum price:
iii: requirements about the non-price terms and conditions on which the land must be offered, with the purpose of ensuring that it is offered to the Crown on terms and conditions that are equivalent to those offered to the overseas person—
A: to the extent that the offer to the Crown is equivalent to the offer made to the overseas person; and
B: subject to the person making the offer choosing to make the terms and conditions more favourable to the Crown:
iv: power for the relevant Ministers—
A: to determine that an offer does not count for the purposes of section 16A(4)﻿(f)
B: to waive the requirement that an offer be made for the purposes of section 16A(4)﻿(f)
v: other processes that the person making an offer must follow, or other requirements that that person must meet, in relation to the preparation, making, assessment, acceptance, or implementation of the offer, including requirements to meet costs that are, or that would otherwise be, incurred by the Crown:
ca: setting out processes that the Crown must follow, or other requirements that the Crown must meet, in relation to the preparation, making, assessment, acceptance, or implementation of an offer made, or to be made, for the purposes of section 16A(4)﻿(f)
4: Replace section 61(1)﻿(i) and (j)
i: implementing obligations that have entered into force for New Zealand before the commencement of section 46
j: specifying types of overseas persons for the purposes of clauses 4(2)﻿(d) and 7 of Schedule 2 section 46
ja: prescribing, for the purposes of clauses 7 and 8 of Schedule 2
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:
5: After section 61(1)﻿(k)
ka: prescribing matters for the purposes of section 61G section 61G(3) section 61G(5)
6: Replace section 61(2)
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.
47: New sections 61C to 61G inserted
Before section 62
61B: Purpose of exemptions
The purpose of sections 61C and 61D
a: provide flexibility where compliance with this Act is impractical, inefficient, or unduly burdensome but where the purpose of this Act can still be substantially achieved through terms and conditions of the exemption; 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 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 of the Property (Relationships) Act 1976:
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 and to support a business that is not principally in the business of using land for residential purposes.
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
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)
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.
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 1993 No 107 ss 45, 45A; 2013 No 69 ss 571(5), 572
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)
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)
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) subsection (4)
7: This section does not limit section 61F(3)
48: New section 80 inserted (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))
After section 79
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 Schedule 1AA
49: New Schedule 1AA inserted
Insert the Schedule 1AA Schedule 1
50: Consequential amendment to Fisheries Act 1996
1: This section amends the Fisheries Act 1996
2: In section 57(1)﻿(e) monitoring information-gathering 2018-10-22 Fisheries Act 1996 s 2(3): rest of Act ‘immediately after the expiry of the 2-month period that starts on the date of Royal assent’ — nb as per 2(2), provisions may come into force before 22 Oct
51: Consequential amendments to Trans-Pacific Partnership Agreement Amendment Act 2016
1: This section amends the Trans-Pacific Partnership Agreement Amendment Act 2016
2: Repeal section 67
3: Replace section 70
70: Schedule 1AA amended
In Schedule 1AA Part 1 Part 2
4: Replace the Schedule 3
3: s 70 Schedule 1AA of Overseas Investment Act 2005 amended
5: In Schedule 3
a: delete the Schedule 1AA heading:
b: replace Part 1 Part 2
c: renumber clauses 1 to 3 as clauses 11 to 13 2018-10-22 Trans-Pacific Partnership Agreement Amendment Act 2016 s 2(3): rest of Act ‘immediately after the expiry of the 2-month period that starts on the date of Royal assent’ — nb as per 2(2), provisions may come into force before 22 Oct