Overseas Investment Amendment Act 2021

1: Title
This Act is the Overseas Investment Amendment Act 2021.
2: Commencement
1: This Act comes into force on the 42nd day after the date on which it receives the Royal assent.
2: Subsection (1) applies with the following exceptions:
a: the following provisions come into force on a date appointed by the Governor-General by Order in Council or, if not earlier brought into force, 6 months after the date on which this Act receives the Royal assent:
i: section 8
ii: sections 9(3) and (4) 27 36
iii: section 11
iv: section 17
b: sections 9(1) and (2) 10 subpart 1
3: In subsection (2)﻿(a) and (b), 1 or more orders may be made appointing different dates for different provisions and for different purposes.
4: In this section, provision
5: An Order in Council made 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(2)﻿(b) brought into force 24 November 2021 clause 2 Overseas Investment Amendment Act 2021 Commencement Order (Benefit Test and Fisheries) 2021
1: Amendments to Overseas Investment Act 2005
3: Principal Act
This Part amends the Overseas Investment Act 2005 principal Act 2021-07-05 Overseas Investment Act 2005 Except as outlined in s 2(2)﻿(a) & (b) 2021-11-24 Overseas Investment Act 2005 Sections 8, 9(3) & (4), 11, 17, 27, 36 (see s 2(2)﻿(a)). Can be brought into force earlier, and different provisions can be brought into force on different dates. OIC LI 2021/331 2021-11-24 Overseas Investment Act 2005 Sections 9(1) & (2), 10, and subpart 1 of Part 2 (see s 2(2)﻿(b)).
4: Section 6 amended (Interpretation)
1: In section 6(1) director fresh or seawater area clause 2 of Schedule 5 fresh or seawater interest clause 2 of Schedule 5 kaitiakitanga natural environment securities of the same class different class
2: In section 6(1) excluded accommodation facility
b: any TLtP premises as defined in clause 5
3: In section 6(1) farm land livestock (which, to avoid doubt, do not include forestry activities within the meaning of section 16A(9))
4: In section 6(1) governing body
ca: in relation to a limited partnership, the general partner or partners:
5: In section 6(1) governing body a partnership, any other partnership, an
6: In section 6(1) historic heritage historic heritage
7: In section 6(1) New Zealand listed issuer incorporated in New Zealand or, in the case of a managed investment scheme, established under New Zealand law
8: In section 6(1) relevant government enterprise
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) of the partners of LP are held by relevant government investors; or
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
9: In section 6(1) relevant government enterprise a partnership any other partnership
10: After section 6(4)﻿(c) and references to other ownership or control interests (for example, of 10% or more) have a corresponding meaning.
11: After section 6(9)
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.
5: Section 7 amended (Who are overseas persons)
1: Repeal section 7(1)
2: Replace section 7(2)
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) subsection (3)﻿(b)
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) subsection (4)﻿(b)
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 of the Limited Partnerships Act 2008; or
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) 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)
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) A
a: the ownership test
b: the control test
5: Terms used in subsections (2)﻿(i) and (4)
6: Section 12 replaced (What are overseas investments in sensitive land)
Replace section 12
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; and
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 paragraph (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)
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%.
7: Section 13 amended (What are overseas investments in significant business assets)
In section 13(1)﻿(a)﻿(i) an increase in an existing more than 25% ownership or control interest in A of a type referred to in section 12(1)﻿(b)﻿(ii)
8: Section 16 amended (Criteria for consent for overseas investments in sensitive land)
Replace section 16(1)﻿(f) 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
9: Section 16A amended (Benefit to New Zealand test)
1: Replace section 16A(1) 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) Subsection (1A)﻿(a) Modified benefit test for things described in subsection (2) (forestry activities) Subsections (1) Subsection (3) 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 will be, or are likely to be, met.
1A: For the purposes of subsection (1)﻿(a)
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) 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)
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) Modified benefit test for things described in subsection (2) (forestry activities)
2: In section 16A(3) subsection (1)﻿(a) and (b) subsection (1)﻿(a)
3: Repeal section 16A(4)﻿(f)
4: In section 16A(9) special land
10: Section 17 replaced (Factors for assessing benefit of overseas investments in sensitive land)
Replace section 17
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 to recognise or protect heritage values, or agreement to land being set apart as a Māori reservation):
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) section 16A(3)
a: must consider all the factors in subsection (1)
b: must determine whether the criteria in section 16A(1)﻿(a) and (b) section 16A(3)
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)
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) 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)
11: Section 20 replaced (Exemptions from farm land offer criterion)
Replace section 20
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) see
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)
10: However, publication under subsection (9) 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.
12: Section 20A amended (Transactions that are transactions of national interest)
1: In section 20A(1)﻿(b) 10% or more more than 25%
2: Replace section 20A(1)﻿(e)
e: a transaction of a kind described in section 13(1)﻿(c) where the acquisition is of or includes property (including goodwill and other intangible assets) in New Zealand used in carrying on a SIB.
3: After section 20A(1)
1A: However, for the purpose of subsection (1)﻿(a) and (b), references to a relevant government investor or investors 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.
13: New section 20AA inserted (Exemptions from definition)
After section 20A
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) for the purpose of section 20A(1)﻿(a) or (b) if the Minister considers—
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).
14: Section 20C amended (Consent may be declined if transaction contrary to national interest)
After section 20C(2)
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 applies with necessary modifications.
15: Section 23A amended (Applications for standing consent in advance of transaction)
After section 23A(2)
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).
16: Section 25A amended (Conditions of consent)
In section 25A(1) sections 25B and 25C sections 25B, 25C, and 25D
17: New section 25D inserted (Automatic condition: transactions involving fresh or seawater areas)
After section 25C
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
18: Section 27A amended (Consent holder may apply for new consent)
In section 27A(5)﻿(a) expected likely
19: New section 29A inserted (Investor test applications where no change since investor test last met)
After section 29
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) 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)
b: subsection (3)
6: Section 23 applies with necessary modifications to an application for an assessment of whether a person meets the investor test.
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)
20: Section 37 repealed (Regulator must keep list of reserves, parks, and other sensitive areas)
1: Repeal section 37 Consequential amendment
2: Repeal section 34(3)﻿(d)
21: Section 37A amended (Regulator must publish list of sensitive adjoining land relating to collective group of Māori)
Repeal section 37A(1)
22: New section 38A inserted (Information for tax purposes)
After section 38
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. 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.
23: Section 46 amended (Offence of false or misleading statement or omission)
After section 46(1)﻿(c)
d: any information provided to the regulator or the Commissioner of Inland Revenue under section 38A
24: New section 60A inserted (Reinstatement of emergency notification regime)
Before section 61
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 of Part 3 (as inserted by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020)).
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
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
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.
25: Section 61 amended (Regulations)
1: Replace section 61(1)﻿(b)
b: prescribing, for the purposes of the criteria in section 16(1)﻿(f)
2: In section 61(1)﻿(ba) ( see
3: Repeal section 61(1)﻿(c), (ca), (d), (la), and (lc)
4: In section 61(1)﻿(e) (but also the previous costs of Ministers and the Commission in relation to those matters under the Overseas Investment Act 1973) (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)
5: After section 61(1)﻿(e)
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
6: Replace section 61(1)﻿(lb)
lb: prescribing enactments for the purposes of rows 10 and 11 of table 2
7: After section 61(3)
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).
26: Section 61B amended (Purpose of exemptions)
1: Replace section 61B(c)﻿(iii)
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:
2: Replace section 61B(c)﻿(viii)
viii: persons, transactions, rights, interests, or assets that the Minister considers to be majority owned and substantively controlled by New Zealanders:
3: After section 61B(c)﻿(ix)
x: estates or interests in land other than freehold or leasehold (for example, covenants).
27: Section 62 repealed (Foreshore, seabed, riverbed, or lakebed acquired by the Crown under consent process is not subdivision)
Repeal section 62
28: Section 82 amended (What is call-in transaction and overseas investment in SIB assets)
1: This section amends section 82 section 53
2: Replace section 82(2) and (3)
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) 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)
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) 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, (for example, because it acquires intellectual property on military or dual-use technology).
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)
29: Section 85 amended (Military or dual-use technology and critical direct supplier call-in transactions)
1: This section amends section 85 section 53
2: In section 85(4)﻿(a) on a later date that may be set out in regulations as soon as is reasonably practicable after the overseas person or associate receives a notice under section 20E
30: Section 126 amended (Power to use and disclose information relevant to managing certain risks)
1: Replace section 126(3)
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.
2: After section 126(8)
9: Subsection (1) does not limit a disclosing agency from using any other lawful means to disclose information (whether personal information or other information).
31: Schedule 1AA amended
1: In Schedule 1AA, repeal Part 4
2: In Schedule 1AA Schedule 1
32: Schedule 1 amended
1: In Schedule 1, Part 1 foreshore or seabed marine and coastal area
2: In Schedule 1, Part 1 see
3: In Schedule 1, Part 1 Table 2
The following table is small in size and has 2 columns. Column 1 is headed Land A is sensitive if it adjoins land of this type. Column 2 is headed … and land A exceeds this area threshold (if any). Row Land A is sensitive if it adjoins land of this type … and land A exceeds this area threshold (if any) 1 marine and coastal area 0.2 hectares 2 bed of a lake 0.4 hectares 3 land held for conservation purposes under the Conservation Act 1987 (if that conservation land exceeds 0.4 hectares in area) 0.4 hectares 4 any reserve under the Reserves Act 1977 that is administered by the Department of Conservation (if that reserve land exceeds 0.4 hectares in area) 0.4 hectares 5 any regional park or part of a regional park that is subject to a declaration under section 139 of the Local Government Act 2002 (if that park or part of the park exceeds 80 hectares) 0.4 hectares 6 any national park held under the National Parks Act 1980 0.4 hectares 7 land that adjoins the marine and coastal area or a lake and is a Māori reservation to which section 340 of Te Ture Whenua Maori Act 1993 applies (if that land/reservation exceeds 0.4 hectares in area) 0.4 hectares 8 land over 0.4 hectares that includes a wahi tapu or wahi tapu area that is entered on the New Zealand Heritage List/Rārangi Kōrero or for which there is an application that is notified under section 68(4) of the Heritage New Zealand Pouhere Taonga Act 2014 0.4 hectares 9 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 10 land (if that land exceeds 0.4 hectares in area) that, pursuant to an enactment specified in Schedule 3 of the Treaty of Waitangi Act 1975 or in regulations,—
a: is owned by the governance entity of a collective group of Māori such as an iwi or a hapū; and
b: is managed in accordance with the Conservation Act 1987 or an enactment referred to in Schedule 1 of that Act 0.4 hectares 11 any reserve under the Reserves Act 1977 (if that reserve exceeds 0.4 hectares in area) that, pursuant to an enactment specified in Schedule 3 of the Treaty of Waitangi Act 1975 or in regulations, is managed wholly or jointly by the governance entity of a collective group of Māori such as an iwi or a hapū 0.4 hectares 12 Te Urewera land (as defined in section 7 of the Te Urewera Act 2014) 0.4 hectares 13 Whanganui River (as defined in section 7 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017) 0.4 hectares 14 Maungatautari Mountain Scenic Reserve (as defined in section 71(1) of the Ngāti Koroki Kahukura Claims Settlement Act 2014) 0.4 hectares
33: New Schedule 1A inserted
After Schedule 1 Schedule 2
34: Schedule 2 amended
1: In Schedule 2, after clause 12(2)﻿(b)
c: a business of a person ( C
2: In Schedule 2, clause 17(3) the land for residential purposes
35: Schedule 3 amended
1: In Schedule 3, clause 2(2)﻿(b) 3 years 4 months
2: In Schedule 3, replace clause 5
5: Certain units acquired and leased back
1: In this clause,— TLtP participant
a: the person ( A
b: any person involved in the development of the TLtP premises (the developer TLtP premises
2: A transaction does not require consent for the purposes of section 10(1)﻿(a) to the extent that it will result in an overseas investment in sensitive land if—
a: the relevant land is residential (but not otherwise sensitive) land; and
b: the relevant land is being used, or is intended to be used,—
i: in the construction of TLtP premises that have 20 or more units, or to increase by 20 or more the number of units in TLtP premises; or
ii: for the operation of TLtP premises that have 20 or more units; and
c: the estate or interest in land described in section 12(1)﻿(a)
i: an estate or interest in 1 (or more) of those units that is acquired by a person (a purchaser
ii: a lease of 1 (or more) of those units by the purchaser to the TLtP participant (a lease-back
3: The exemption is subject to the following conditions:
a: the lease-back must meet the following requirements at all times on and after the acquisition of the purchaser’s estate or interest:
i: the purchaser cannot occupy, reserve, or use the unit for more than 30 days in each year; and
ii: for the rest of the year, the unit must be managed and used for the general purposes of operating the TLtP premises; and
b: when the lease-back period ends, the purchaser must either, within 12 months of that period ending,—
i: grant to the TLtP participant a new lease-back of the unit that complies with the matters in paragraph (a)
ii: dispose of its estate or interest in the unit; and
c: the purchaser must not occupy, reserve, or use the unit while it is not leased back to a TLtP participant.
3: In Schedule 3, replace clause 6(4)﻿(b)﻿(ii)
ii: that are for a total term (as calculated in accordance with Schedule 1A
36: New Schedule 5 inserted
After Schedule 4 Schedule 3
2: Amendments to other Acts
1: Amendment to Fisheries Act 1996
37: Amendment to Fisheries Act 1996
This subpart amends the Fisheries Act 1996 OIC LI 2021/331 2021-11-24 Fisheries Act 1996 See s 2(2)﻿(b). Subpart 1 of Part 2 brought into force by the Overseas Investment Amendment Act 2021 Commencement Order (Benefit Test and Fisheries) 2021.
38: Sections 57G and 57H replaced
Replace sections 57G 57H
57G: Criteria for overseas investments in fishing quota
The criteria for an overseas investment in fishing quota are all of the following:
a: the investor test is met:
b: 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 section 16A(1A) section 57H
c: if the overseas investment in fishing quota is a transaction of national interest, the Minister has not declined consent to the transaction ( see section 20C
d: the interest in fishing quota is capable of being registered in the Quota Register or the Annual Catch Entitlement Register.
57H: Factors for determining whether or not overseas investment in fishing quota will, or is likely to, benefit New Zealand
What are the factors
1: The factors for assessing the benefit of overseas investments in fishing quota are whether the overseas investment will, or is likely to,—
a: result in economic benefits for New Zealand (for example, the creation and retention of jobs, introduction of technology or business skills, increased export receipts, increased processing in New Zealand of fish, aquatic life, or seaweed, or a reduced risk of illiquid assets):
b: result in benefits to the natural environment (for example, protection of indigenous fish or mitigation of environmental impacts by innovations in fishing technologies):
c: give effect to or advance a significant Government policy:
d: involve oversight of, or participation in, the overseas investment and any relevant overseas person by persons who are not overseas persons:
e: result in other consequential benefits to New Zealand. How factors must be considered
2: Section 17(2)
2: Amendment to Tax Administration Act 1994
39: Amendment to Tax Administration Act 1994
This subpart amends the Tax Administration Act 1994 2021-07-05 Tax Administration Act 1994
40: Section 3 amended (Interpretation)
In section 3(1) offshore person section 7(2)﻿(b) to (f) of the Overseas Investment Act 2005 section 7(2)﻿(b) to (k)