Waterfront Industry Restructuring Act 1989

1: Short Title
This Act may be cited as the Waterfront Industry Restructuring Act 1989.
2: Interpretation
1: In this Act, unless the context otherwise requires,— Authority section 4 expenses harbour board land
a: means any land or interest in land that—
i: is or was vested in or held by a harbour board; and
ii: is to be or has been vested in or transferred to a territorial authority or regional council pursuant to any local government reorganisation Order in Council; and
iii: is not to be transferred to a port company pursuant to a port company plan; and
b: includes any land or interest in land vested in or held by the Marlborough Harbour Board that is not to be transferred to Port Marlborough New Zealand Limited pursuant to a port company plan; but
c: does not include any area to which section 150 of the Harbours Act 1950 local authority local government reorganisation Order in Council Schedule 1 Minister net income
a: all reasonable expenses of the local authority in which that land is vested (being expenses directly related to, or that would be directly related to, the derivation of that income); and
b: any land tax payable in respect of that land by the local authority in which that land is vested net value Port Companies Act 1988 section 29 port company section 4 port company plan Port Companies Act 1988 port company shares shares
a: means the equity securities issued by any port company; and
b: includes any advances in lieu of issued share capital as if the advances were issued share capital port related commercial undertaking Port Companies Act 1988 section 22(9) redundancy shipwright tally clerk value of port company shares
a: means the amount represented by total shareholders' funds; and
b: includes—
i: any advances in lieu of issued share capital; and
ii: the amount or value of any securities that would, in accordance with generally accepted accountancy principles, be regarded as shareholders' funds.
2: Notwithstanding the repeal of the Waterfront Industry Commission Act 1976 section 36 waterside worker waterside work Waterfront Industry Commission Act 1976
3: Act to bind the Crown
This Act shall bind the Crown.
1: Waterfront Industry Restructuring Authority
4: Establishment of Authority
1: There is hereby established an authority to be known as the Waterfront Industry Restructuring Authority.
2: The Authority shall be a body corporate with perpetual succession and a common seal, and shall be capable of acquiring, holding, and disposing of real and personal property, of entering into contracts, of suing and being sued, and of doing and suffering all such acts and things as bodies corporate may do and suffer.
5: Functions of Authority
1: The principal function of the Authority shall be to provide money to assist the employers of waterside workers, tally clerks, and shipwrights in the payment of redundancy to those workers so as to facilitate waterfront restructuring.
2: Without limiting the generality of the Authority's principal function, the Authority shall also have the following functions:
a: to determine, in its discretion, the amounts of assistance to be provided under this Act to employers of waterside workers, tally clerks, and shipwrights who are liable to pay redundancy to those workers:
b: to determine, subject to the approval of the Minister, whether the percentage specified in section 37 section 33
c: to determine, in its discretion, the timing and terms of levy payments:
d: to determine, or participate in the determination, in accordance with this Act, of—
i: the value of port company shares; and
ii: the net value of port related commercial undertakings; and
iii: the net income from harbour board land:
e: such other functions as may be conferred on the Authority by this or any other Act.
6: Powers of Authority
1: The Authority shall have all such powers as are reasonably necessary or expedient to enable it to carry out its functions.
2: Without limiting the generality of subsection (1), the Authority shall have power to borrow money on such terms and conditions as it considers appropriate to meet its expenditure in advance of receiving income from levies.
7: Authority to implement policy of Government
1: In the exercise of its functions and powers, the Authority shall give effect to the policy of the Government in relation to those functions and powers as that policy is communicated to it from time to time by notice in writing by the Minister.
2: Where a notice is given to the Authority under subsection (1), the Minister shall, as soon as practicable after the giving of the notice, publish in the Gazette
8: Membership of Authority
1: The Authority shall consist of 3 members to be appointed from time to time by the Governor-General on the recommendation of the Minister, made after consultation by the Minister with the Minister of Finance and the Minister of Local Government.
2: One member shall be appointed by the Governor-General as Chairperson and another shall be appointed by the Governor-General as Deputy Chairperson.
3: The persons appointed as members of the Authority shall be persons who, in the opinion of the Governor-General, have such expertise as will ensure that the Authority discharges its functions.
9: Term of office of members of Authority
Except as provided in section 10
10: Vacation of office
1: Any member of the Authority may at any time be removed from office by the Governor-General for disability, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.
2: Any member of the Authority may at any time resign the office of member by notice in writing addressed to the Governor-General.
3: Where any member of the Authority dies or resigns or is removed from office, the office shall become vacant, and the vacancy shall be filled in the manner in which the appointment to the vacant office was originally made.
4: The functions and powers of the Authority shall not be affected by any vacancy in its membership.
11: Contracts of Authority
1: Any contract which, if made by private persons, must be by deed shall, if made by the Authority, be in writing under the common seal of the Authority.
2: Any contract which, if made by private persons, must be signed by the parties to be charged therewith shall, if made by the Authority, be either under the common seal of the Authority or signed by a member or officer of the Authority on behalf of and by authority of the Authority.
3: Any contract which, if made by private persons, may be made orally may be made in the manner specified in subsection (1) as in the case of a deed, or in the manner specified in subsection (2) as in the case of a contract required to be in writing, or may be made orally by or on behalf of the Authority by any member or officer of the Authority acting by authority of the Authority, but no oral contract shall be made for any sum exceeding $2,000.
4: The Authority may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, to execute instruments on its behalf in any place in or beyond New Zealand. Any instrument executed by such an attorney on behalf of the Authority shall bind the Authority, and if executed as a deed shall have the same effect as if it were under the common seal of the Authority.
5: Notwithstanding anything to the contrary in the foregoing provisions of this section, no contract made by or on behalf of the Authority shall be invalid by reason only that it was not made in manner provided by this section, if it was made pursuant to a resolution of the Authority or to give effect to a resolution of the Authority in relation to contracts generally or in relation to that particular contract.
12: Loans, grants, guarantees, and indemnities by the Crown
1: The Minister of Finance may from time to time, out of money appropriated by Parliament for the purpose, advance money to the Authority by way of loan or grant.
2: The Minister of Finance may from time to time, on behalf of the Crown, in respect of any advances made to the Authority by any other person, give any guarantee, indemnity, or security pursuant to section 65ZD
3: Every such guarantee, indemnity, or security shall be given, and every such advance by way of loan shall be made, on and subject to such terms and conditions including the payment of any fee to the Crown as the Minister of Finance thinks fit. Section 12(2) amended 25 January 2005 section 37(1) Public Finance Amendment Act 2004
13: Exemption from income tax
1: The income of the Authority shall be exempt from income tax.
2: Nothing in subsection (1) exempts the Authority from payment of fringe benefit tax.
14: Further provisions applying in respect of Authority
The provisions of Schedule 2
15: Annual report
1: As soon as practicable after the end of each year ending with 30 June, the Authority shall furnish to the Minister a report of its proceedings and operations for the year.
2: The report shall include—
a: the annual financial statement of the Authority prepared under clause 9
b: the report of the Audit Office on the annual financial statement of the Authority:
c: a report on such other matters as the Minister in writing may from time to time require.
3: A copy of the report shall be laid before the House of Representatives as soon as practicable after its receipt by the Minister.
2: Provision of assistance by Authority
16: Extent of assistance to be provided by Authority
1: The Authority shall, in its discretion, determine the level of assistance that it is prepared to make available to persons liable to make redundancy payments to waterside workers, tally clerks, and shipwrights.
2: The level of assistance determined under subsection (1) shall be made known by the Authority to any person who requests that information.
3: The level of assistance determined under subsection (1)—
a: shall be calculated and expressed—
i: as an amount in respect of each waterside worker, tally clerk, or shipwright; or
ii: as a formula that results in a specified amount; but
b: shall not be calculated or expressed as a percentage of the total redundancy payable in respect of any waterside worker, tally clerk, or shipwright.
4: The levels of assistance determined under this section may vary as between waterside workers, tally clerks, and shipwrights or categories of waterside workers, tally clerks, and shipwrights, and as between employers or ports in such manner as the Authority considers appropriate.
17: Applications for assistance
1: Any employer or group of employers of waterside workers, tally clerks, or shipwrights may make an application to the Authority for financial assistance to pay redundancy to such workers.
2: Every such application—
a: shall be made not later than 30 June 1990; and
b: shall be in such form and shall contain such information as the Authority requires.
18: Discretion in relation to payment of assistance
1: The payment of assistance to employers under this Part shall be discretionary, and the Authority shall not be obliged to make any payment to any employer if it considers that the payment would not be appropriate.
2: In particular, the Authority shall not make any payment in respect of any redundancy that is not part of reforms that, in the opinion of the Authority,—
a: will enhance the economy, efficiency, or performance of the waterfront industry; or
b: will produce a quantifiable reduction in the cost of providing services to port users.
19: Payment of assistance
Where the Authority decides, in its discretion, to pay assistance to any employers, the Authority shall make the payments at such times, in such manner, and subject to such conditions as it considers appropriate in each case.
20: Assessable income
Payments of assistance made under this Part to any employer shall, for the purposes of the Income Tax Act 1976
3: Levies
Levy on port company shares and levy on port related commercial undertakings
21: Levy on port company shares held by local authorities
1: There is hereby imposed on each local authority that holds port company shares as at the close of 27 July 1989 a levy of 5% of the value of the port company shares held by that local authority as at the close of that date.
2: For the purposes of subsection (1),—
a: every local authority shall be deemed to hold as at the close of 27 July 1989 any port company shares that, as at the close of that date, are held on its behalf by any other person; and
b: every local authority shall be deemed to hold as at the close of 27 July 1989 any port company shares disposed of by that local authority before the close of 27 July 1989; and
c: any local authority to which any port company shares have been transferred before the close of 27 July 1989 shall be deemed not to hold those shares; and
d: all shares in a port company shall be deemed to be of equal value irrespective of both the class to which they belong and the number held by any local authority.
22: Statement of value of port company shares
Every port company shall, not later than one month after the commencement of this Act, provide to the Authority a statement of the value of the port company shares of that company as at the close of 27 July 1989, which statement shall show the manner in which that value was calculated.
23: Value of port company shares
For the purposes of section 21 section 25
24: Date when certain shares deemed to have been issued
For the purposes of section 21
a: any port related commercial undertaking has been transferred to a port company before the close of 27 July 1989; and
b: any shares that are to be issued to meet the price of that undertaking have not been issued as at the close of that date,— the shares shall be deemed to have been issued before the close of that date.
25: Levy in respect of port related commercial undertakings
1: There is hereby imposed on each local authority that, as at the close of 27 July 1989, is the owner of any port related commercial undertaking (being an undertaking that is to be transferred to a port company after the close of 27 July 1989, or such later date as the Minister may determine) a levy of 5% of the net value of that undertaking as at the close of that date.
2: The levy imposed by subsection (1) shall not be taken into account in determining under the Port Companies Act 1988
26: Power of Authority to make determinations in relation to levy on shares and undertakings
1: The Authority may determine—
a: whether any levy imposed by section 21 section 25
b: in relation to any amount that is to be paid by instalments, the amount of each instalment and the date on which each instalment is to be paid.
2: In making a determination under any provision of subsection (1), the Authority shall have regard in each case to the Authority's estimated expenditure and estimated income from sources other than levies in respect of which the Authority is making a determination.
27: Power to allow payment by instalments at request of local authority
Notwithstanding section 26
a: allow that local authority to pay by instalments any levy imposed under section 21 section 25
b: where the Authority has determined that any levy imposed under section 21 section 25
28: Power to impose conditions
Any decision made by the Authority under section 27
29: Notice of determination in relation to levy
1: The Authority shall, on making a determination under section 26
2: The notice required by subsection (1) shall be given to the person liable to pay the levy at least one month before the date on which the levy or the first amount on account of the levy, is required to be paid.
30: Interest on outstanding payments or instalments
Where any local authority which is liable to pay any levy imposed under section 21 section 25
31: Liability for levy payments where shares or undertaking transferred
1: Except as provided in subsection (2), where any port company shares in respect of which a levy is imposed by section 21 section 25
a: the liability for payment of the levy shall remain with the local authority disposing of the shares or undertaking; and
b: notwithstanding any determination made under section 26(1)﻿(a)
2: Where—
a: any port company shares are transferred pursuant to a local government reorganisation Order in Council; or
b: a port related commercial undertaking is transferred to a local authority pursuant to a local government reorganisation Order in Council before it is transferred to a port company,— the liability to pay any levy that has not been paid shall become a liability of the local authority to which the shares or undertaking is transferred.
32: Levies not to be deductible for purposes of Income Tax Act 1976
For the purposes of the Income Tax Act 1976 section 21 section 25 Levy on harbour board land
33: Levy on harbour board land
There is hereby imposed on each local authority that holds harbour board land a levy of such percentage of the net income of that local authority from that land for the period beginning on 28 July 1989 and ending with the close of 30 June 1992 as the Authority determines under section 37(1)﻿(a)
34: Initial statement of anticipated net income from harbour board land
1: Every harbour board shall, not later than one month after the commencement of this Act, provide to the Authority a statement of its anticipated net income from harbour board land for the period specified in section 33
2: The statement shall show—
a: the information and calculations supporting the amount of the anticipated net income; and
b: the dates on which the harbour board expects to derive the amounts that make up the anticipated net income.
35: Quarterly statements of income derived from harbour board land
1: Every local authority that holds any harbour board land shall, unless the Authority otherwise agrees, supply to the Authority, within one month after the close of each quarter, a statement showing, in respect of that quarter,—
a: the gross income derived by that local authority from harbour board land; and
b: the amount of the net income derived by that local authority from harbour board land; and
c: the information and calculations supporting the amounts shown pursuant to paragraphs (a) and (b).
2: The periods that are quarters for the purposes of this section are—
a: the period beginning on 28 July 1989 and ending with the close of 30 September 1989:
b: the period of 3 months ending with the close of 31 December 1989:
c: the periods of 3 months ending respectively with 31 March, 30 June, 30 September, and 31 December in the years 1990 and 1991:
d: the periods of 3 months ending respectively with 31 March 1992 and 30 June 1992.
36: Liability for levy where right to net income to harbour board land transferred
1: Where the right to the net income of any harbour board land is transferred to any person after the commencement of this Act (whether or not the land remains harbour board land), the levy imposed by section 33
a: as if the right had not been transferred; and
b: as if the local authority had continued to derive the net income that it could reasonably have been expected to derive from that land.
2: Notwithstanding anything in subsection (1), where any harbour board land is vested in a local authority pursuant to a local government reorganisation Order in Council, that local authority shall be liable for the payment of the levy required to be paid under this Act in respect of the net income of that harbour board land.
37: Power of Authority to make determinations in relation to levy on harbour board land
1: Subject to subsection (4), the Authority shall determine—
a: the percentage that shall apply for the purposes of section 33
b: whether the levy imposed under section 33
c: in relation to any amount that is to be paid by instalments, the amount of each instalment and the date on which each instalment is to be paid.
2: In making a determination under any provision of subsection (1), the Authority shall have regard in each case to the Authority's estimated expenditure and estimated income from sources other than levies under section 33
3: In making any determination under subsection (1)﻿(a), the Authority—
a: may determine different percentages in respect of different pieces of harbour board land (whether or not related to the same harbour), or that no amount by way of levy shall be payable in respect of any land; and
b: may consider, but is not required to consider, the likely expenditure in relation to the waterside workers, tally clerks, and shipwrights ordinarily employed at any port in determining the percentage that is to apply in respect of any harbour board land.
4: No determination made under this section shall come into force until the Minister has, by notice in the Gazette
38: Notice of determination in relation to levy
1: The Authority shall, on a determination under section 37
2: The notice required by subsection (1) shall be given to the person liable to pay the levy at least one month before the date on which the levy, or the first amount on account of the levy, is required to be paid.
39: Assessable income for purposes of Income Tax Act 1976
Where the net income derived from any harbour board land is, under the Income Tax Act 1976 section 33
4: Miscellaneous provisions
40: No challenge on ground that levy and expenditure not related
No determination of the Authority in respect of the amount of any levy payable under this Act shall be capable of being challenged in any court or arbitration proceedings on the grounds that the levy is not likely to be applied towards payments to employers of waterside workers, tally clerks, or shipwrights ordinarily employed at the port with which the port company or the land is associated.
41: Application of levies and other income
The levies payable to, and other income (including any borrowings) of, the Authority shall be applied—
a: in making payments to employers of waterside workers, tally clerks, and shipwrights as authorised by or under this Act; and
b: in meeting the costs and expenses of the Authority (including administration and remuneration); and
c: in meeting the costs and expenses incurred by the Ministry of Transport in relation to this Act before its commencement (as certified to the Authority by the Secretary for Transport); and
d: in the repayment of borrowings and payment of interest on borrowings under this Act.
42: Refund of surplus
Where the Authority has any surplus money at the date of its dissolution, the Authority shall distribute the surplus in a fair and equitable manner among the persons who paid levies of any kind under this Act to the Authority, or who made any other contributions in money to the Authority, or their successors having regard to the amount of levies paid or contributions paid or made by those persons and irrespective of any subsequent changes in the ownership of any shares, port related commercial undertaking, or harbour board land.
43: Supply of information
1: The Authority may, from time to time, for the purposes of this Act, require any local authority or port company to make available to it, within one month of the requirement, information in its possession or over which it has control that—
a: relates to the identification of harbour board land; or
b: is or may be relevant to—
i: the determination of the value of port company shares; or
ii: the net value of any port related commercial undertaking; or
iii: the net income of any harbour board; or
iv: any other matter relevant to the Authority.
2: Every local authority and every port company shall, in complying with a requirement made under subsection (1), make that information available in a form in which it may be readily understood.
44: Arrangement to defeat intent or application of Act to be void
Notwithstanding anything in this Act, where the Authority is satisfied that an arrangement has been entered into (either before or after the commencement of this Act) to defeat the intent or application of this Act or of any provision of this Act, the Authority—
a: shall treat the arrangement as void for the purposes of this Act; and
b: shall adjust the amount of any levy payable by that person (whether or not that person is a party to the arrangement) in such manner as the Authority considers appropriate so as to counteract any reduction of any levy that would otherwise be payable under this Act.
45: Local authorities not obliged to apply proceeds from shares, income from undertaking, or land in payment of levy
Where any local authority is required to make any payment of levy under this Act, the local authority may, if it considers it appropriate, make the payment out of its general fund or any other funds that may lawfully be applied towards that payment.
46: Recovery of unpaid levies
1: The Authority may recover as a debt due to it any levy that is not paid on the date due, in any court of competent jurisdiction.
2: Where any amount of levy is not paid on the due date, any interest that is payable in respect of that amount may be recovered as if it were an amount of unpaid levy.
47: Arbitration of certain disputes
1: In the event of any dispute about—
a: the value of port company shares; or
b: the net income of any harbour board land; or
c: the amounts or dates of payment of instalments payable under section 26(1)﻿(a) section 37(1)﻿(b)
d: the distribution of any surplus under section 42 the matter may be referred to arbitration by the Authority or any local authority or group of local authorities affected by the matter.
2: Where any matter is so referred,—
a: one assessor shall be appointed by the Authority; and
b: one assessor shall be appointed by the local authority or group of local authorities affected; and
c: the assessors shall, within 7 days after their appointment, and before entering upon their reference, appoint a person to act as arbitrator as between the assessors.
3: Any matters upon which the assessors cannot reach agreement shall be referred from time to time to the arbitrator for decision and that decision shall form part of the assessors' determination.
4: In the exercise of their powers under this section, the assessors may determine any matter irrespective of how any amounts may be described in the accounts or records of any local authority or port company.
5: The determination of the assessors shall be final and shall have the same force as if it were an agreement between the parties to the arbitration.
6: The Authority and every local authority or port company having the possession or custody of any relevant books, papers, accounts, or documents shall allow the assessors and the arbitrator to have access thereto for the purposes of this section.
48: Levy payable pending resolution of arbitration or proceeding
1: Any levy imposed by the Authority under this Act shall be payable to the Authority notwithstanding that there may be an arbitration in progress under section 47
2: Where in any arbitration or other proceedings it is determined that any levy paid was not properly payable, the Authority shall refund the levy paid in error and pay interest on that amount at such rate as the Minister of Finance considers reasonable in the circumstances having regard to any determination made in that arbitration or those proceedings.
49: Amendment to Ombudsmen Act 1975
Amendment(s) incorporated in the Act(s)
50: Amendment to Official Information Act 1982
Amendment(s) incorporated in the Act(s)
51: Dissolution of Authority
As from the close of 30 September 1992,—
a: the Authority shall be dissolved; and
b: all real and personal property belonging to the Authority shall become vested in the Crown; and
c: all proceedings pending by or against the Authority may be carried on, completed, or enforced by or against the Crown; and
(d), (e): Amendment(s) incorporated in the Act(s)