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DLM97065 | 2001 | Electricity Amendment Act 2001 | 1: Title
1: This Act is the Electricity Amendment Act 2001.
2: In this Act, the Electricity Act 1992 the principal Act
2: Commencement
Except as provided in section 3
3: Commencement of Electricity Governance Board provisions
Section 3 repealed 18 October 2004 14(4) Electricity Amendment Act 2004
4: Process to apply before Electricity Governance Board provisions may be commenced
Section 4 repealed 18 October 2004 14(4) Electricity Amendment Act 2004
5: Automatic trigger of process for commencing Electricity Governance Board provisions
Section 5 repealed 18 October 2004 14(4) Electricity Amendment Act 2004
6: Title amended
The Title of the principal Act is amended by inserting, after the words the regulation of the supply of electricity and the electricity industry
7: Interpretation
1: Section 2(1) point of supply point of supply subsection (3) .
2: Section 2(1) community trust section 3(1) of the Electricity Industry Reform Act 1998 section 38 of that Act customer trust section 3(1) of the Electricity Industry Reform Act 1998 section 38 of that Act domestic consumer domestic premises paragraphs (a) to (i) of section 90 of the Electricity Industry Reform Act 1998 EGB subpart 1 of Part 15 EGB's board board Part 15 and Schedule 2A section 172Q electricity generator electricity governance organisation subpart 2 of Part 15 section 172ZI electricity governance regulations sections 172D and 172E GPS objectives and outcomes section 172ZJ industry participant
a: an electricity retailer:
b: an electricity distributor:
c: an electricity generator:
d: a line owner:
e: a person who uses electricity that is conveyed to the person directly by the national grid:
f: a person or group of persons involved in the governance or administration of the electricity industry national grid performance standards section 172ZJ report date subpart 2 of Part 15 section 172ZJ reporting period section 172ZJ rules and electricity governance rules subpart 2 of Part XIV subpart 1 of Part 15 section 172H Transpower .
3: Section 2
3: In this Act, point of supply
a: if there are both high voltage lines and a transformer owned by the electricity distributor on the property, the point of supply is the point at which electricity from the transformer enters exclusive fittings; or
b: if there are non-exclusive fittings on the property, the point of supply is the point at which those fittings become exclusive fittings; or
c: if the exclusive fittings on the property are owned by a consumer that is a tenant or licensee of the owner or occupier of the property, the point of supply is the point at which those exclusive fittings enter the area leased or licensed by the consumer; or
d: if there is specific agreement that any other point on the property is the point of supply, the point of supply is the agreed point;— and, in this definition,— exclusive fittings high voltage lines property
a: means the land within the boundary where the electricity is consumed:
b: includes the whole of the property, if the property is occupied wholly or partially by tenants or licensees of the owner or occupier:
c: includes the whole of any property that has been subdivided under the Unit Titles Act 1972 specific agreement
a: entered into by—
i: the existing consumer; or
ii: any person with a greater interest in the property than the consumer (such as the consumer's landlord); or
iii: any body corporate under the Unit Titles Act 1972
b: entered into by the electricity distributor or the electricity retailer; and
c: entered into before or after the date on which this provision comes into force.
4: The new definition of point of supply in subsection (3)
a: applies on and after the date on which the Electricity Amendment Act 2001 receives the Royal assent if—
i: an agreement exists between the electricity distributor and the consumer that the point of supply is already located at the point provided for in the new definition; and
ii: the consumer has not challenged the existence of that agreement before that date; and
b: is, in other cases, subject to the transitional provision in subsection (5)
5: The new definition of point of supply in subsection (3)
a: brought the fittings for which the consumer will become responsible as a result of the new definition to a reasonable standard of maintenance or repair, if those fittings are not at a reasonable standard at the time when this provision comes into force; and
b: notified the consumer in writing—
i: that the point of supply is as defined in accordance with the new definition; and
ii: the location of that point of supply; and
iii: the effect of the change to the point of supply; and
iv: that the point of supply may not take effect under this Act unless any fittings for which the consumer will become responsible have been brought to a reasonable standard of maintenance and repair; and
v: the date on which the point of supply will change (which must be no less than 20 working days after the date of the notification).
8: New
sections 4 4A The principal Act is amended by repealing sections 4 4A
4: Declaration of electricity distributors as electricity operators
1: The Minister may, by notice in the Gazette
2: The Minister must, as soon as reasonably practicable, by notice in the Gazette
4A: Declaration of electricity supply businesses as electricity operators
1: The Minister may, by notice in the Gazette
a: that a declaration is necessary to enable the person to carry on all or any of the activities referred to in section 4(2) of the Electricity Industry Reform Act 1998
b: that the electricity distribution business interests of the electricity supply business in respect of which the declaration is made are confined to any or all of the activities set out in that subsection.
2: The Minister must, as soon as reasonably practicable, by notice in the Gazette section 4(2) of the Electricity Industry Reform Act 1998
3: For the purposes of this section, electricity supply business section 5(1)(a)(iii) of the Electricity Industry Reform Act 1998
9: New
section 22A The principal Act is amended by inserting, after section 22
22A: Owners of land not responsible for maintenance
1: An owner or occupier of land on which any existing works are situated is not required by this Act to maintain existing works, or to maintain tracks for the purpose of providing the owner of the works with access to the existing works.
2: This section does not limit or override any new or existing legally binding agreement that provides for an owner or occupier of the land to be responsible for any maintenance.
10: Rights of entry in respect of existing works
1: Section 23
3: In this section, maintenance
a: any repairs and any other activities for the purpose of maintaining, or that have the effect of maintaining, existing works; and
b: the carrying out of any replacement or upgrade of existing works as long as the land will not be injuriously affected as a result of the replacement or upgrade.
2: The amendment made by subsection (1) Resource Management Act 1991 subsection (1)
11: New
sections 23A to 23E
1: The principal Act is amended by inserting, after section 23
23A: Line owner must give written notice of intention to maintain or complete existing works
1: An owner of existing works that intends to enter upon land for the purpose of maintaining or completing the works under section 23
2: The notice must be in writing, and must specify—
a: the location of the proposed entry and work; and
b: the reasons for the entry and work and the nature of the work to be undertaken; and
c: the date and time of entry; and
d: the length of time that the owner of the works expects to be on the land.
23B: Line owner must give notice of intention to inspect or operate existing works
1: An owner of existing works that intends to enter upon land for the purpose of inspecting or operating the works under section 23
2: The notice may be given by telephone or in any other manner that the owner of the works thinks appropriate.
23C: Notice in emergencies
1: An owner of existing works is excused from giving notice as required by section 23A or section 23B
a: entry upon the land is necessary in circumstances of probable danger to life or property; or
b: entry upon the land is immediately necessary to maintain the continuity or safety of the supply and distribution of electricity.
2: However, in either case, the owner of the existing works must give notice to the owner or occupier of the land as soon as practicable and to the extent that the circumstances permit (and no later than 5 working days after entry).
23D: Land owner may set reasonable conditions on line owner's entry
The owner or occupier of the land may set reasonable conditions relating to the timing of entry under section 23
a: delay the entry by more than 15 working days; or
b: require monetary or other consideration; or
c: otherwise defeat the ability of the owner of the works to exercise effectively the powers in section 23
23E: Agreements preserved
Sections 23A to 23D
2: Section 159(1) 31 23A to 23E,
12: New
section 23F The principal Act is amended by inserting, before section 24
23F: Disputes about land access
1: The owner or occupier of land, or the owner of the works, may refer any dispute under sections 23 to 23E
2: The objector must, as soon as practicable after making a written objection, serve a copy of the objection on the other party to the dispute.
3: Within 1 month after receiving a copy of the objection or within any further period that the Environment Court allows, the other party to the dispute must send to the Environment Court and serve on the objector a reply to the objection containing matters that are appropriate having regard to the objection made and to any practice directions issued by the Environment Court.
4: The Environment Court must inquire into the objection and, for that purpose, may conduct a hearing at any time and place it appoints.
5: The Environment Court must give not less than 15 working days' notice of any time and place so appointed to the objector and to the other party to the dispute.
6: The Environment Court has power to make a declaration as if the proceeding had been brought under sections 310 to 313 of the Resource Management Act 1991
7: The findings of the Environment Court are binding on the objector and the other party to the dispute.
8: The Environment Court may award those costs that it considers just either in favour of or against either party.
9: Subject to sections 299 to 308 of the Resource Management Act 1991 1981 No 35 s 24 .
13: New headings and
sections 158A to 158F
1: The principal Act is amended by inserting, after the Part 14
1: General electricity matters
Financial statements of customer and community trusts
158A: Community and customer trusts to prepare audited financial statements
The trustees of a community trust and the trustees of a customer trust must, within 4 months after the end of each financial year of the trust,—
a: prepare financial statements in accordance with generally accepted accounting practice (within the meaning of section 3 of the Financial Reporting Act 1993
b: submit those financial statements to an auditor for audit; and
c: make available to the public in accordance with section 158B
158B: Publication of audited financial statements
1: The trustees of a community trust and the trustees of a customer trust must make the documents referred to in section 158A(c)
a: for inspection at every office of the trust or at any other place specified in the notification under subsection (2)
b: for purchase at a reasonable price.
2: The trustees must also notify the fact that copies are so available (and where) by advertisement in the news section of 2 separate editions of each newspaper that is widely read by customers of the customer trust or by persons in the community of the community trust (as the case requires).
158C: Auditor of trusts
1: The trustees of a community trust or a customer trust must, in each financial year, hold an annual meeting of beneficiaries at which the beneficiaries appoint an auditor to hold office from the conclusion of that meeting until the conclusion of the next annual meeting of beneficiaries.
2: The trustees of a community trust or a customer trust may fill any casual vacancy in the office of auditor by appointing an auditor to hold office until the conclusion of the next annual meeting of beneficiaries (but, while the vacancy remains, the surviving or continuing auditor, if any, may continue to act as auditor).
3: The fees and expenses of the auditor must be fixed—
a: at the annual meeting of beneficiaries or in the way the beneficiaries determine at the meeting, if appointed at the annual meeting:
b: by the trustees, if appointed by the trustees.
4: An auditor of a community trust or customer trust—
a: must be a person who is qualified to act as an auditor under section 199(1) of the Companies Act 1993
b: must not be a trustee, director, employee, or agent of the trust or of any electricity company owned by the trust or otherwise disqualified from being an auditor under section 199(2)(b) and (d) of the Companies Act 1993
5: In addition, sections 198, 200, and 202 to 207 of the Companies Act 1993
6: These sections of the Companies Act 1993
7: In this section, electricity company section 3(1) of the Electricity Industry Reform Act 1998
158D: Procedures for annual meeting to appoint auditor
1: The trustees must give no less than 14 days' notice of the annual meeting of beneficiaries to appoint an auditor in the news section of 2 separate editions of each newspaper that is widely read by customers of the customer trust or by persons in the community of the community trust (as the case requires).
2: Every beneficiary has 1 vote.
3: The quorum for the annual meeting is 20 beneficiaries.
4: No business may be transacted at the annual meeting if a quorum is not present.
5: The regulations under section 172C
158E: Auditor-General to be auditor if no other auditor appointed
1: If no auditor is appointed in accordance with section 158C(1) section 158C(2)
2: The trustees of a community trust or customer trust must, within 5 working days of subsection (1)
3: If this section applies, the sections and Parts of the Public Audit Act 2001 section 19 of that Act
158F: Application of
sections 158A to 158E
1: The trustees of a community trust and the trustees of a customer trust must comply with sections 158A and 158B section 46A of the Energy Companies Act 1992
2: Except as provided in subsection (1) sections 158A to 158E
2: Sections 158C to 158E subsection (1)
14: Repeal and saving of information disclosure provisions
1: The principal Act is amended by repealing sections 170 171 171A 172 section 170
2: The Electricity (Information Disclosure) Regulations 1999 section 170
3: Sections 171 171A 172 Electricity (Information Disclosure) Regulations 1999 subsection (2)
15: Repeal of
section 170A The principal Act is amended by repealing section 170A
16: New subpart 2 and
Part 15 The principal Act is amended by inserting, after section 172
2: Electricity industry regulation-making powers
172A: Outline of subpart
1: In this subpart, the principal regulation-making powers are as follows:
a: regulations may be made under section 172B section 172C
b: electricity governance regulations and rules may be made under sections 172D and 172H
c: under section 172E
d: other electricity governance regulations and rules may be made under sections 172F and 172H
e: under section 172H
2: This section is intended only as a guide to the general scheme and effect of the principal regulation-making powers in this Part. Regulations—Low fixed charge tariff option for domestic consumers
172B: Low fixed charge tariff option for domestic consumers
1: The objective of this section is to enable the making of regulations to ensure that electricity providers offer a low fixed charge tariff option or options for delivered electricity to domestic consumers that will assist low-use consumers and encourage energy conservation.
2: In this section,— delivered electricity electricity provider fixed charge
3: The Governor-General may, by Order in Council, make regulations—
a: requiring electricity providers to make available to domestic consumers 1 or more tariff options that include a fixed charge for delivered electricity to domestic premises at not more than a specified amount or proportion calculated by reference to the total charge of the average or median domestic consumer:
b: regulating the variable (cents per kilowatt hour) charges in those required tariff options to ensure that average or median domestic consumers would pay no more on the required tariff option than on any alternative option available from that electricity provider:
c: regulating other charges and other terms and conditions of the contracts to which the low fixed charge tariff options in paragraph (a)
d: setting rules as to the offering, supply, advertisement, promotion, availability, and unbundling of regulated charging options:
e: specifying criteria for the Minister to exempt electricity providers, or electricity providers in relation to particular areas, from the application of the regulations if, in the opinion of the Minister, the electricity providers materially comply with the objective of this section.
4: If the components that make up the delivered electricity are unbundled, regulations may be made under subsection (3)
5: Subsection (4)
6: Regulations made under subsection (3)
7: The Governor-General may, for the purpose of assisting retailers to deliver low fixed charge tariff options, by Order in Council, make regulations—
a: regulating all or any charges charged by electricity distributors to ensure that they are not, in the opinion of the Minister, unreasonably detrimental to the interests of low-use consumers:
b: regulating the terms and conditions under which electricity distributors supply their services in relation to domestic consumers to ensure that they are not, in the opinion of the Minister, unreasonably detrimental to the interests of low-use consumers:
c: setting rules as to the offering, availability, supply, and unbundling of electricity distributors' services.
8: The Governor-General may, by Order in Council, make regulations providing for the supply and collection of information from electricity providers and electricity distributors—
a: about contracts, offers, advertising, or promotion relating to the supply of delivered electricity, or components of delivered electricity, to domestic consumers; or
b: information that is necessary for the purposes of calculating the total charge for the average or median domestic consumer.
9: Subsection (7) Regulations—Code on access for beneficiaries of community and customer trusts
172C: Regulations for code on access for beneficiaries of customer and community trusts
1: The objective of this section is to enable the making of regulations to promote the accountability of community and customer trusts to their beneficiaries.
2: The Governor-General may, by Order in Council, make regulations for all or any of the following purposes in relation to community trusts and customer trusts:
a: providing for a code of practice for those trusts and their trustees that specifies—
i: requirements for trustees to disclose to beneficiaries information of the kind that they are required to disclose to beneficiaries under the Trustee Act 1956
ii: procedures and other matters concerning requests for information, decisions on those requests, and the form in which information must be provided:
iii: requirements for those trustees to hold at least 1 annual meeting that beneficiaries may attend and other matters concerning those meetings, including notice requirements, the rights of beneficiaries to attend and to receive copies of minutes of or other material relating to those meetings, and a requirement for the chairperson of those meetings to allow a reasonable opportunity for beneficiaries at the meeting to question, discuss, or comment on the management of the trust:
b: providing for rights of review of acts and decisions of trustees concerning matters governed by the code, the powers and procedures of the person or court undertaking that review, and consequential rights of appeal or review.
3: Nothing in the code under subsection (2)(a) Electricity governance regulations
172D: Electricity governance regulations for wholesale market and transmission of electricity
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with section 172E subsection (2)
2: The purposes are— Wholesale electricity market
a: providing for the establishment and operation of wholesale markets for electricity, including for pricing and determining quantities of electricity for market transactions; for clearing, settling, and reconciling market transactions; for scheduling and dispatching electricity; for disclosure of market information; for minimum prudential standards for market participation; and for minimum standards of market conduct:
b: requiring participants in wholesale electricity markets or classes of participants to comply with the matters in paragraph (a) Transmission of electricity
c: prescribing reasonable terms and conditions on which Transpower must enable distribution lines and generators and users of electricity to be connected to the national grid, and that must be complied with in connecting to the national grid:
d: regulating the way in which expansions, replacements, or upgrades of the national grid or parts of the national grid must be evaluated, carried out, and funded, including specifying—
i: the circumstances in which Transpower must generally carry out expansions, replacements, or upgrades:
ii: particular expansions, replacements, or upgrades that Transpower must carry out:
iii: the methodology on which costs for expansions, replacements, or upgrades must be allocated among industry participants, or the actual allocation of those costs, and providing for their payment by industry participants:
iv: obligations for Transpower to report annually in relation to forecasts of medium-term system adequacy to assist in identifying opportunities for the use of alternatives to expansions, replacements, or upgrades:
e: setting quality and security standards for the transmission system or parts of the transmission system, or for the use of that system or part, and requiring industry participants to comply with those standards:
f: requiring the use by Transpower of a specified methodology or component of a methodology for allocating Transpower's revenue requirement to individual electricity generators, electricity retailers, electricity distributors, line owners, customers, or consumers, or classes of any of those persons, including—
i: defining the charges for any of those persons or classes of any of those persons:
ii: imposing quality standards generally or in respect of the supply of transmission services to any of those persons or classes of any of those persons:
iii: requiring a specified person or class of persons receiving (either directly or indirectly) goods or services from Transpower to pay a specified amount or proportion of the total price, or the total price, for those goods or services:
iv: authorising a way or ways in which Transpower may apply the methodology.
172E: Conditions and process for recommendations on electricity governance regulations for wholesale market and transmission of electricity
1: The Minister may recommend electricity governance regulations under section 172D
a: EGB is established; and
b: the recommendation—
i: is for transitional purposes if EGB is established but has not yet made a recommendation to the Minister on the matter; or
ii: implements the substantive effect of a recommendation by EGB to the Minister.
2: The following process applies to recommendations by the Minister and EGB concerning those regulations:
a: sections 172W to 172Z
b: before making a recommendation, EGB or, if there is no EGB recommendation, the Minister must consult with persons that EGB or the Minister (as the case may be) thinks are representative of the interests of persons likely to be substantially affected by the proposed regulations:
c: EGB and the Minister must each, before making a recommendation, have regard to the following objectives:
i: energy and other resources are used efficiently:
ii: risks relating to security of supply are properly and efficiently managed:
iii: the full costs of producing and transporting each additional unit of electricity are signalled:
iv: delivered electricity costs and prices are subject to downward pressure:
v: the quality of electricity services as far as possible reflects customers' preferences:
vi: transmission losses and constraints are signalled:
vii: consistency with the Government's climate change policies and objectives is achieved.
3: Subsection (2)(b)
a: EGB or the Minister must consult on the regulations in accordance with subsection (2)(b)
b: after that consultation, the Minister must publish a notice in the Gazette and then within a further 6 months, the Minister must implement that decision.
4: A failure to comply with subsection (2)(b)
172F: Other electricity governance regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with section 172G subsection (2)
2: The purposes (and the relevant objectives applying for the purpose of section 172G Complaints resolution system
a: with the objective of promoting best industry practice and enhancing access to redress for complaints, establishing a complaints resolution system for complaints from any person (including, without limitation, potential consumers and landowners) about electricity distributors and electricity retailers, to be administered independently of those electricity distributors and electricity retailers, containing—
i: a code of practice setting minimum standards of conduct, and containing benchmarks for best practice, for electricity distributors and electricity retailers:
ii: requirements for electricity distributors and electricity retailers to establish and maintain procedures for handling complaints (including referring complaints to EGB, each other, or other agencies for their consideration):
iii: procedures for complaints to be made to a complaints resolution agency, and providing for the powers and procedures of that agency in relation to the handling of, investigation of, reporting on, and the making of recommendations or decisions on those complaints (including referring complaints to EGB or other agencies for their consideration):
iv: provision for compensation up to a maximum of $20,000 to be awarded and other actions to be taken by the complaints resolution agency referred to in subparagraph (iii)
v: provision for rights of appeal or review in relation to decisions relating to those complaints:
vi: requirements for the complaints resolution agency to collect and publish aggregated statistical information on the use of prepayment meters and on disconnections: Prepayment meters
b: requiring electricity retailers to offer prepayment meters to domestic consumers at a reasonable cost, and prescribing conditions on which those meters must be supplied, with the objective of ensuring that all domestic consumers who wish to pay for electricity in advance have the option to do so at reasonable cost: Ability of consumers to choose preferred electricity retailer
c: providing a system or set of rules that will enable any consumer or class of consumer to choose, and alternate, between competing electricity retailers, with the objective of promoting competition in electricity retail markets:
d: requiring all users of the national grid or distribution lines to comply with, and give effect to, a system or set of rules that will enable any consumer or class of consumer to choose, and alternate, between competing electricity retailers, with the objective of promoting competition in electricity retail markets: Transition arrangements for insolvent electricity retailers
e: providing a system of transition arrangements for consumers in the event of an electricity retailer becoming insolvent, and requiring industry participants to comply with that system, with the objective of protecting consumers or managing the liabilities of other electricity retailers: Connection of generation to distribution lines
f: prescribing reasonable terms and conditions on which line owners and electricity distributors must enable generators to be connected to distribution lines other than the national grid, and that must be complied with in connecting to those distribution lines, with the objective of facilitating the use of distributed generation and ensuring that generators using distributed generation do not face barriers in connecting to those lines: Hydro spill
g: with the objective of providing transparency on hydro spill and so minimising hydro spill and promoting the efficient use of energy and other resources,—
i: requiring hydro-generators to disclose information in relation to the amount, location, timing of, and reasons for, any hydro spill from works owned by that hydro-generator:
ii: requiring hydro-generators to use a prescribed methodology or model in calculating hydro spill:
iii: requiring hydro-generators to obtain an annual audit of the disclosure in subparagraph (i) Hedge prices
h: requiring electricity retailers and electricity generators to supply information relevant to hedge prices to a central collection agency that is involved in the governance or administration of the electricity industry, and requiring that agency to collate and disclose aggregated information on hedge prices, with the objective of providing information on the expected balance between electricity supply and demand to help investors and consumers make decisions on providing for security of electricity supply: Dispute resolution procedure
i: providing procedures for resolving disputes between industry participants:
j: providing for the operation and facilitation of those dispute resolution procedures by a person, and the powers and procedures of that person: Enforcement of electricity governance regulations
k: providing for compliance with electricity governance regulations and rules to be monitored and enforced by EGB or any other person or court, and the powers and procedure of that person or court.
3: In subsection (2)(h) electricity generator
172G: Process for recommendations on other electricity governance regulations
1: The Minister may recommend electricity governance regulations under section 172F
2: The following process applies to recommendations by the Minister and EGB concerning those regulations:
a: sections 172W to 172Z
b: before making a recommendation, EGB must consult with persons that EGB thinks are representative of the interests of persons likely to be substantially affected by the proposed regulations:
c: if there is no EGB recommendation or the Minister thinks that his or her proposed recommendation substantially departs from EGB's recommendation, the Minister must, before making a recommendation, consult with persons that the Minister thinks are representative of the interests of persons likely to be substantially affected by the proposed regulations:
d: before making a recommendation concerning regulations under section 172F(2)(a)
e: EGB and the Minister must each, before making a recommendation, have regard to the relevant objective contained in section 172F(2)
f: if EGB has made a recommendation to the Minister on the matter, the Minister must have regard to EGB's recommendation before making his or her own recommendation.
3: Subsection (2)(b), (c), and (d)
a: the Minister must consult on the regulations in accordance with subsection (2)(c)
b: after that consultation, the Minister must publish a notice in the Gazette and then within a further 6 months, the Minister must implement that decision.
4: A failure to comply with subsection (2)(b), (c), or (d)
172H: Electricity governance rules
1: The Minister may make a rule for all or any of the purposes for which an electricity governance regulation may be made.
2: In deciding whether to make a rule rather than recommend the making of an electricity governance regulation, the Minister must have regard to only—
a: the importance of the rule, including whether the rule has a material effect on the rights and interests of individuals:
b: the subject matter of the rule, including whether the rule contains detailed or technical matters rather than matters of general principle:
c: the application of the rule, including—
i: whether the rule applies principally to a particular group (eg, industry participants) rather than the general public:
ii: whether the benefits of publication in accordance with section 172I Acts and Regulations Publication Act 1989
d: the expertise and rule-making procedures of the agency that has recommended the rule (eg, the expertise of EGB).
3: If the Minister makes, or EGB recommends, a rule for a purpose for which an electricity governance regulation may be made, the Minister and EGB must comply with the same conditions and process that would apply under section 172E or section 172G
4: Section 172I
5: A rule is a regulation for the purposes of the Regulations (Disallowance) Act 1989 (but not for the purposes of the Acts and Regulations Publication Act 1989
6: To the extent that a rule is inconsistent with an electricity governance regulation, the rule is subject to the electricity governance regulation.
7: If a court holds that a rule has been made in contravention of subsection (2)
172I: Method of making electricity governance rules
1: A rule may be made under section 172H Gazette
a: the empowering provision for the electricity governance regulation in relation to which the rule is made and a brief description of the nature of the rule; and
b: where copies of the rule are available for inspection and purchase.
2: The notice in the Gazette
3: A rule comes into force 28 days after the date on which it is notified in the Gazette
4: The Minister or, if it is established, EGB must make all of the rules made under section 172H
a: for inspection, free of charge,—
i: at the Ministry or the principal office of the EGB (during ordinary office hours), as the case requires; and
ii: on the Internet in an electronic form that is publicly accessible (at all reasonable times); and
b: for purchase at a reasonable price. Supplementary provisions
172J: Supplementary empowering provision for regulations and rules
1: Any regulations made under sections 172B to 172F section 172H
a: provide for the establishment of 1 or more persons or bodies or groups of persons to carry out functions in relation to those regulations or rules, and for matters concerning their constitution, functions, members (including their appointment, removal, duties, and protection from liability), procedures, employees, administration and operation, funding by industry participants, and reporting requirements:
b: prescribe the form and manner in which information is to be disclosed:
c: require disclosed information, or information from which disclosed information is derived (in whole or in part), to be certified, in the prescribed form and manner, by persons belonging to any specified class of persons:
d: prescribe when and for how long information must be disclosed:
e: exempt or provide for exemptions (including provide for the revocation of exemptions), on any terms and conditions, of any person or class of persons from all or any of the requirements in regulations made under sections 172B to 172F section 172H
f: provide for the supply of information for the purpose of administration and enforcement of this Act, and regulations and rules made under this Act:
g: provide for transitional provisions:
h: provide for any other matters contemplated by this Act or necessary for its administration or necessary for giving it full effect.
2: Regulations or rules that may be made in respect of all industry participants or classes of industry participants may be made in respect of all or any of the persons in that class and in respect of all or part of their business.
172K: Supplementary empowering provision for regulations
Any regulations made under sections 172B to 172F
a: provide for offences that are punishable by summary conviction for a contravention of those regulations, or of rules made under section 172H
b: provide for compensation, civil penalties, and other actions that may be taken in respect of contraventions of those regulations or of rules made under section 172H
c: confer and provide for rights of appeal and review in relation to decisions relating to contraventions of the regulations or of rules made under section 172H
15: Governance of electricity industry
Preliminary provisions
172L: Purpose
The purpose of this Part is to—
a: enable the establishment of the Electricity Governance Board to be responsible for—
i: developing recommendations on electricity governance regulations or rules that promote its principal objective in accordance with subpart 1:
ii: other matters relating to the governance of the electricity industry in accordance with section 172O
b: ensure the accountability of electricity governance organisations in accordance with subpart 2.
1: Electricity Governance Board
172M: Establishment of Electricity Governance Board
1: This section establishes an organisation called the Electricity Governance Board ( EGB
2: EGB is a Crown entity for the purposes of the Public Finance Act 1989
172N: Principal objective of EGB
The principal objective of EGB is to ensure that electricity is generated, conveyed, and supplied to all classes of consumers in an efficient, fair, reliable, and environmentally sustainable manner.
172O: Functions of EGB
1: The functions of EGB are to—
a: formulate and make recommendations concerning electricity governance regulations and rules in accordance with this subpart:
b: administer, monitor compliance with, enforce, and apply penalties or other remedies for contraventions of electricity governance regulations and rules:
c: establish, operate, and facilitate the operation of (by contracting with other parties, entering into a joint venture company or contractual arrangement, or other means) markets for industry participants:
d: develop best practice distribution pricing methodologies and other standards and model agreements for use by industry participants:
e: provide advice to the Minister on matters concerning the electricity industry:
f: carry out any other functions the Minister may direct under section 172ZA
2: In performing its functions, EGB must promote its principal objective.
172P: Body corporate status and powers
1: EGB is a body corporate with perpetual succession.
2: Subject to this Act, EGB has—
a: full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction; and
b: for the purposes of paragraph (a)
3: EGB may exercise its powers only for the purpose of carrying out its functions.
172Q: Role of board of EGB
1: All decisions relating to the operation of EGB must be made by or under the authority of the members of EGB who number not less than the required quorum acting together as a board ( EGB's board board
2: EGB's board has all the powers necessary for carrying out its role in subsection (1)
172R: Membership of EGB's board
EGB's board must consist of members numbering no less than 5 and no more than 9. Duties of members
172S: Duties of members
1: A member, when acting as a member, must act—
a: in good faith; and
b: with reasonable care, diligence, and skill; and
c: with honesty and integrity; and
d: in accordance with clauses 9 to 12 of Schedule 2A
2: A member, when acting as a member, must not act as a representative of, or promote the interests or views of, any organisation to which the member belongs, a particular industry participant, or a particular group of industry participants.
172T: Collective duties of EGB's board
EGB's board must—
a: not contravene, or cause EGB or any subsidiary of EGB to contravene, this Act; and
b: ensure that EGB, and endeavour to ensure that any subsidiary of EGB, acts in a manner consistent with the objectives and functions of EGB and with EGB's current statement of intent and purchase agreement; and
c: ensure that EGB, and endeavour to ensure that any subsidiary of EGB, performs its functions efficiently and effectively and in a manner consistent with the spirit of service to the public; and
d: ensure that EGB, and endeavour to ensure that any subsidiary of EGB, operates in a financially responsible manner and, for this purpose, that it—
i: endeavours to maintain its long-term financial viability; and
ii: endeavours to ensure that its total operating expenses do not exceed its total operating revenues; and
iii: endeavours to act as a successful going concern; and
iv: prudently manages its assets and liabilities.
172U: Members accountable to Minister
1: A member is accountable to the Minister for performing his or her duties and responsibilities as a member.
2: If EGB's board breaches any of its duties under section 172T
a: each member of that board is accountable to the Minister for the breach; and
b: that breach justifies all or any of the members being removed from office.
3: Subsection (2)
a: he or she did not know and could not reasonably be expected to know that the duty was to be or was being breached; or
b: he or she took all reasonable steps to prevent the duty being breached.
4: The duties of members and the board under section 172S section 172T
172V: Further provisions as to EGB and EGB's board in
Schedule 2A Schedule 2A Role of EGB in relation to electricity governance regulations and rules
172W: EGB to make recommendations concerning electricity governance regulations and rules
1: EGB must, in accordance with this subpart, formulate and make recommendations concerning regulations or rules under the following sections:
a: section 172D
b: section 172F
c: section 172H
2: EGB's recommendations under subsection (1) sections 172J and 172K
172X: Objectives of recommendations
In formulating recommendations under section 172W
a: have regard to its principal objective; and
b: ensure the recommendations are consistent with any direction under section 172ZA
c: have regard to objectives in accordance with sections 172E(2)(c) and 172G(2)(e)
172Y: Obligation to consult
EGB must, in formulating recommendations, consult with persons in accordance with sections 172E(2)(b) and 172G(2)(b)
172Z: Minister must have regard to recommendations
1: The Minister must have regard to a recommendation by EGB in exercising any of his or her powers or functions in relation to electricity governance regulations or rules, but may, in his or her absolute discretion,—
a: decide not to act on that recommendation or, for regulations or rules for a purpose contained in section 172F
b: defer, for any period and reasons the Minister thinks fit, making a decision on the recommendation:
c: refer back to EGB its recommendation for further consideration by EGB.
2: If the Minister decides not to act on an EGB recommendation, to substantially depart from an EGB recommendation, or to defer making a decision on an EGB recommendation, the Minister must publish a notice in the Gazette Power to direct EGB
172ZA: Power to direct EGB
1: The Minister may direct EGB—
a: to carry out any other functions:
b: to give effect to a government policy set out in the direction:
c: on outcomes to be achieved by EGB or objectives for EGB that are contained in, or are related to outcomes or objectives that are contained in, the statement of government policy under section 172ZK
d: on the following matters:
i: which matters EGB must formulate and make recommendations on under section 172W
ii: principles or objectives for those recommendations.
2: A direction—
a: under subsection (1)(a)
b: under subsection (1)(b) to (d)
3: EGB must, in performing its functions, comply with a direction given under subsection (1) subsection (4)
4: A direction to EGB must not require EGB, in respect of a particular person, to make a particular decision, or to do or refrain from doing a particular act, or to bring about a particular result (other than in relation to Transpower).
172ZB: Procedure for giving direction
1: The Minister must consult with EGB before giving a direction to EGB.
2: The direction must be given in writing, be dated, and be signed by the Minister.
3: As soon as practicable after giving the direction, the Minister must—
a: publish a copy of it in the Gazette
b: present a copy of it to the House of Representatives.
4: The direction may be amended, revoked, or replaced in the same way as it may be given. Levy of industry participants
172ZC: Levy of industry participants
1: Every industry participant (or prescribed class of industry participants) must pay to the Minister a levy prescribed by regulations under section 172ZE
2: The regulations under that section may—
a: specify the amount of levies or method of calculating or ascertaining the amount of levies, on the basis that the estimated costs of performing EGB's functions, powers, and duties under this Act, and of collecting the levy money, should be met fully out of levies:
b: include or provide for including in levies any shortfall in recovering those actual costs:
c: refund or provide for refunds of any over-recovery of those actual costs:
d: provide different levies for different classes of industry participants:
e: specify the financial year or part financial year to which those levies apply, and apply to that financial year or part and each subsequent financial year until revoked or replaced:
f: provide for the payment and collection of those levies:
g: for the first financial year to which the levy applies, include in the levy amount or method the costs of performing EGB's functions, duties, and powers under this Act from the date on which this subpart comes into force, irrespective of the fact that the regulations may be made and come into effect after that date:
h: require payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:
i: exempt or provide for exemptions from, or provide for waivers of, the whole or any part of the levy for any case or class of cases.
3: The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.
4: In this section, industry participant Miscellaneous
172ZD: Accountability of EGB
EGB is accountable to the Minister in accordance with Part V of the Public Finance Act 1989
172ZE: Regulations
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
b: providing for the levies under section 172ZC
c: providing for any other matters contemplated by this subpart or necessary for its administration or necessary for giving it full effect.
172ZF: EGB is public authority
1: EGB is a public authority for the purposes of the Inland Revenue Acts.
2: In this section, Inland Revenue Acts section 3(1) of the Tax Administration Act 1994
172ZG: Amendment to
Ombudsmen Act 1975 The Ombudsmen Act 1975 Part II of the First Schedule Electricity Governance Board and every subsidiary of the Electricity Governance Board.
172ZH: Amendment to
Public Finance Act 1989 The Public Finance Act 1989 Sixth Schedules Electricity Governance Board.
2: Accountability of electricity governance organisations
172ZI: Application of subpart
1: This subpart applies to—
a: EGB, if it is established; and
b: any person to whom it applies under subsection (2) and each is called an electricity governance organisation
2: The Minister may, by notice in the Gazette
a: apply this subpart to any person or group of persons involved in developing rules or standards applying to any industry participants under a contract, arrangement, or understanding between those participants, or in monitoring or enforcing the contract, arrangement, or understanding, or otherwise involved in the governance of the electricity industry; and
b: cease to apply this subpart to that person or group.
3: The Minister may nominate a report date for that person or group in the notice under subsection (2)
172ZJ: Interpretation
In this subpart, unless the context otherwise requires,— GPS objectives and outcomes section 172ZK performance standards section 172ZL report date
a: for EGB, the close of 30 June in each calendar year:
b: for other electricity governance organisations, the close of 30 June in each calendar year or any other date in each calendar year that the Minister nominates as the organisation's report date in the notice under section 172ZI reporting period
a: the period from the date on which this subpart applies to the organisation under section 172ZI
b: each subsequent 12-month period ending on the organisation's report date.
172ZK: Setting of GPS objectives and outcomes
1: The Minister must set objectives and outcomes that the Government wants an electricity governance organisation to pursue in relation to the governance of the electricity industry, and against which an electricity governance organisation must report and be examined in accordance with this subpart.
2: The Minister must set those objectives and outcomes by—
a: giving the electricity governance organisation a statement of government policy containing those objectives and outcomes ( GPS objectives and outcomes
b: giving the electricity governance organisation an amendment to, or replacement of, that statement.
3: Each statement (or amendment to, or replacement of, a statement) under subsection (2) Gazette
172ZL: Agreement of annual performance standards
1: An electricity governance organisation (other than EGB) must, within 3 months after the commencement of each reporting period, agree performance standards with the Minister for that reporting period.
2: The performance standards—
a: must include the performance targets and other measures by which the performance of the organisation may be judged; and
b: must state the overall standard of performance by the organisation that will be considered satisfactory at the end of the reporting period ( satisfactory performance standard
c: must be matters against which the organisation's actual performance may be reported and audited; and
d: must relate to all of the GPS objectives and outcomes that are affected, or could be affected, by a wholesale market or a transmission matter contained in section 172D
e: may relate to any other GPS objectives and outcomes, but to no other matter.
3: Before agreeing the performance standards, the Minister must consult with the Auditor-General on whether the proposed performance standards meet the requirements in subsection (2)(c), (d), and (e)
172ZM: Annual performance report to Minister
1: An electricity governance organisation must, within 3 months after the organisation's report date, deliver to the Minister a report on its operations during the last reporting period, and submit that annual report to the Auditor-General for an assurance audit under section 172ZO
2: The annual report—
a: must contain the information that is necessary to enable an informed assessment to be made of the performance of the organisation against the GPS objectives and outcomes and (for organisations other than EGB) against the performance standards; but
b: need not contain information on the organisation's financial performance.
172ZN: Minister must present annual performance report to House of Representatives
The Minister must present copies of every annual report provided to him or her under section 172ZM
172ZO: Assurance audit by Auditor-General
1: The Auditor-General—
a: must examine the annual report provided to the Auditor-General under section 172ZM
b: may, at any time, examine the information to be contained in the annual report and the systems of an electricity governance organisation, and report on that examination to the Minister and the House of Representatives.
2: The Auditor-General's report under subsection (1)
a: provide assurance on—
i: the appropriateness, adequacy, and accuracy of the information contained, or to be contained, in the annual report; and
ii: whether the annual report enables, or is likely to enable, an informed assessment to be made of the matters stated in section 172ZM(2)(a)
b: (for organisations other than EGB) state whether or not the organisation has met the satisfactory performance standard or that the organisation's annual report does not enable an informed assessment of whether or not it has done so.
3: A report under subsection (1)(a) negative annual audit report section 5 of the Electricity Amendment Act 2001
172ZP: Report by Parliamentary Commissioner for Environment
1: The Parliamentary Commissioner for the Environment must examine, in accordance with subsection (2)
2: The Parliamentary Commissioner for the Environment—
a: must, as soon as practicable after each report date of an electricity governance organisation, carry out the examination in subsection (1)
b: in addition, may carry out the examination in subsection (1)
3: A report under subsection (2)(a) section 172D negative annual audit report section 5 of the Electricity Amendment Act 2001
172ZQ: Functions under this subpart
1: The Parliamentary Commissioner for the Environment may exercise all of the Commissioner's powers under the Environment Act 1986
2: The Public Audit Act 2001 section 4 of that Act
3: The functions conferred on the Auditor-General and the Parliamentary Commissioner for the Environment by this subpart are additional to, and do not limit, the Auditor-General's or the Commissioner's functions, duties, and powers under the Public Audit Act 2001 Environment Act 1986
172ZR: Offences
1: Every person commits an offence who,—
a: when required to do so by or under this subpart, knowingly fails to produce any information that is in that person's possession or under that person's control in relation to the management, performance, or activities of an electricity governance organisation:
b: intentionally obstructs, hinders, or resists any person in the exercise of the person's powers under any enactment in relation to the person's functions under this subpart:
c: makes a statement or gives information when required to do so by or under this subpart, knowing that the statement or information is false or misleading.
2: A person who commits an offence under subsection (1)
a: in the case of an individual, to a fine not exceeding $2,000:
b: in the case of a person or organisation other than an individual, to a fine not exceeding $5,000.
17: New
Part 16 The principal Act is amended by inserting, before the heading Repeals, revocations, amendments, and savings
16: Repeals, etc, and transitional provisions
18: New
Schedule 2A The principal Act is amended by inserting, after Schedule 2 2A
19: Transitional provision for Transpower's pricing methodology on and after 26 July 2001
1: Any person who has assets that are directly connected to the national grid must pay for grid connection services provided on and after 26 July 2001 the amount that is charged by Transpower in accordance with the transitional pricing methodology.
2: The transitional pricing methodology
3: The amount payable under subsection (1)
a: is recoverable in any court of competent jurisdiction as a debt due to Transpower; and
b: may be challenged in any proceedings to recover the debt on the ground that Transpower has incorrectly applied the methodology in a manner that is adverse to the payer, but the methodology itself may not be challenged.
4: This section applies—
a: except to the extent that it would limit or override any new or existing agreement that is binding on Transpower and the other person; and
b: until the end of the transitional period.
5: The transitional period
6: Subsection (5) substituted 26 January 2004 30 Electricity Amendment Act 2004 Subsection (6) repealed 26 January 2004 30 Electricity Amendment Act 2004
20: Savings provision for Transpower's pricing methodology before 26 July 2001
1: No person who owns assets that are directly connected to the national grid may, on or after 26 July 2001,—
a: recover in court any amount paid for grid connection services provided by Transpower before 26 July 2001; or
b: make any set-off, counterclaim, or deduction in respect of all or any part of such an amount, against or from any amount that is owing to Transpower under section 19
2: Transpower may not, on or after 26 July 2001, recover in court any amount—
a: that has been charged in respect of grid connection services provided by Transpower before 26 July 2001; and
b: that is the subject of a genuine dispute relating to the transitional pricing methodology (or a previous pricing methodology relating to grid connection services), which dispute has been notified in writing to Transpower before 26 July 2001.
3: Subsection (1)
21: Validations of actions by persons without electricity operator status
1: Actions taken by persons in the following circumstances are as lawful as if the persons who carried out the actions were electricity operators under section 4
a: actions carried out, at any time during the period commencing on 1 April 1993 and ending with the date of commencement of the Electricity Operators Order 1995
b: actions carried out, at any time during the period commencing on 23 June 1998 and ending with 28 December 2000, by the companies currently known as United Networks Limited, VECTOR Limited, Orion New Zealand Limited, and Eastland Network Limited.
2: Subsection (1)
22: Amendment to
Public Audit Act 2001
1: Schedule 1 Public Audit Act 2001 Electricity trusts that are customer trusts or community trusts, or both (as those terms are defined in sections 3 and 38 of the Electricity Industry Reform Act 1998
2: Schedule 2 Public Audit Act 2001
a: omitting the item Electricity Ashburton Limited
b: omitting the item Otago Power Limited |
DLM95818 | 2001 | Hauraki Gulf Marine Park Amendment Act 2001 | 1: Title
1: This Act is the Hauraki Gulf Marine Park Amendment Act 2001.
2: In this Act, the Hauraki Gulf Marine Park Act 2000
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: New
sections 49A 49B The principal Act is amended by inserting, after section 49
49A: Transitional provisions
1: This section applies to an application for a resource consent for the Hauraki Gulf, its islands, and catchments—
a: made before the commencement of this Act; but
b: not finally determined before the commencement of the Hauraki Gulf Marine Park Amendment Act 2001.
2: The continuation and completion of an application (including rights of appeal) must be in accordance with the Resource Management Act 1991
3: Subsection (4) section 119(4) of the Resource Management Act 1991 sections 7 and 8 of this Act
4: The Minister must consider the application as if the referral back had not been made.
5: For the purposes of subsection (4) section 119(1) of the Resource Management Act 1991
49B: Applications finally determined
1: This section applies to an application for a resource consent for the Hauraki Gulf, its islands, and catchments—
a: made before the commencement of this Act; and
b: finally determined—
i: before the commencement of the Hauraki Gulf Marine Park Amendment Act 2001; and
ii: without complying with section 9(4) of this Act
2: A decision (including a decision on an appeal) relating to an application has effect, on and from the date it is made, as if this Act had not been enacted. |
DLM91218 | 2001 | Superannuation Schemes Amendment Act 2001 | 1: Title
1: This Act is the Superannuation Schemes Amendment Act 2001.
2: In this Act, the Superannuation Schemes Act 1989 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Implied provision as to transfer of members, etc
Section 9B subsection (2)
2: The trustees of each registered superannuation scheme affected must notify the persons described in subsection (2A) subsection (2B)
a: from a registered superannuation scheme to any other superannuation scheme; or
b: from a superannuation scheme to a registered superannuation scheme.
2A: The persons referred to in subsection (2)
a: all members and beneficiaries of each registered superannuation scheme (other than those members and beneficiaries that, in the opinion of the Government Actuary, are not likely to be materially affected by the proposed transfer referred to in that subsection); and
b: the Government Actuary.
2B: At least 1 month before the date by which the written consent of members and beneficiaries to a proposed transfer referred to in subsection (2)
a: the trustees must notify the members and beneficiaries described in subsection (2A)(a)
i: the proposed transfer and its implications for members and beneficiaries; and
ii: the date on which the proposed transfer is to occur; and
iii: the date by which the written consent of members and beneficiaries to the proposed transfer must be received by the trustees; and
iv: the fact that a copy of the notice has been forwarded to the Government Actuary; and
b: the trustees must notify the Government Actuary in writing of—
i: the proposed transfer and its implications for members and beneficiaries; and
ii: the date on which the proposed transfer is to occur; and
iii: the date by which the written consent of members and beneficiaries to the proposed transfer must be received by the trustees.
4: New
section 9BA The principal Act is amended by inserting, after section 9B
9BA: Government Actuary may exempt trustees from requirement to obtain written consent of all members and beneficiaries
1: The Government Actuary may exempt trustees of a registered superannuation scheme from the requirement to obtain the written consent of all members and beneficiaries of the scheme under sections 9 and 9B
a: the trustees have not been able to contact all members or beneficiaries of the scheme despite having taken all reasonable steps to do so; and
b: the proposed action is not unreasonable in relation to the best interests of any member or beneficiary who has not been contacted.
2: To avoid doubt, any exemption given by the Government Actuary under this section is subject to section 23
5: Accounts
1: Section 13(1) paragraph (b)
b: annual accounts in respect of the scheme are prepared in accordance with generally accepted accounting practice (as defined in section 3 of the Financial Reporting Act 1993 .
2: Section 13(2) paragraph (b)
b: that administration manager has prepared annual accounts in respect of the scheme that comply with generally accepted accounting practice (as defined in section 3 of the Financial Reporting Act 1993 .
6: Annual reports
1: Section 14(1) 6 months 5 months
2: Section 14 subsection (3)
3: The trustees must send a copy of the completed report to the Government Actuary within 28 days after its completion.
7: Actuarial examination
1: Section 15(2) 9 months 7 months
2: Section 15 subsection (3)
3: The trustees must send a copy of the report of the actuary to the Government Actuary within 28 days after the date of its receipt by the trustees. |
DLM91076 | 2001 | Receiverships Amendment Act 2001 | 1: Title
1: This Act is the Receiverships Amendment Act 2001.
2: In this Act, the Receiverships Act 1993 the principal Act
2: Commencement
This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
3: Interpretation
Section 2(1) account receivable section 16(1) of the Personal Property Securities Act 1999 inventory section 16(1) of the Personal Property Securities Act 1999 new value section 16(1) of the Personal Property Securities Act 1999 proceeds section 16(1) of the Personal Property Securities Act 1999 purchase money security interest section 16(1) of the Personal Property Securities Act 1999 security agreement section 16(1) of the Personal Property Securities Act 1999 security interest section 17 of the Personal Property Securities Act 1999
4: Duty to notify suspected offences against other Acts
1: Section 28(1) offence that is material to the receivership
2: Section 28(1) paragraph (a)
aa: the Crimes Act 1961
3: Section 28 subsection (1)
1A: A report made under subsection (1)
5: Preferential claims
1: Section 30 subsection (1)
1: This section applies to a receiver of the property of a grantor that is a company, other than a company in liquidation at the time of the receiver's appointment, and who was appointed under a security agreement that created or provided for a security interest that—
a: is over all or any part of the company's accounts receivable and inventory or all or any part of either of them; and
b: is not a purchase money security interest; and
c: does not arise from the transfer of an account receivable for which new value is provided by the transferee for the acquisition of that account receivable (whether or not the transfer of the account receivable secures payment or performance of an obligation).
2: Section 30(2)
a: omitting the words property that is subject to the security interest accounts receivable and inventory that are subject to the security interest or their proceeds
b: inserting, before the words any claim from those assets
c: inserting, after the word security interest
3: Section 30
5: The provisions of this section, as in force immediately before the commencement of the Personal Property Securities Act 1999
6: New
section 30A The principal Act is amended by inserting, after section 30
30A: Extinguishment of subordinate security interests
If property has been disposed of by a receiver, all security interests in the property and its proceeds that are subordinate to the security interest of the person in whose interests the receiver was appointed are extinguished on the disposition of the property. 1999 No 126 115 |
DLM110997 | 2001 | Conservation Amendment Act 2001 | 1: Title
1: This Act is the Conservation Amendment Act 2001.
2: In this Act, the Conservation Act 1987 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Interpretation
Section 2(1)
a: omitting from the definition of conservation management plan section 48 of the National Parks Act 1980
b: repealing the definition of management plan |
DLM112749 | 2001 | Foundation for Research, Science, and Technology Amendment Act 2001 | 1: Title
1: This Act is the Foundation for Research, Science, and Technology Amendment Act 2001.
2: In this Act, the Foundation for Research, Science, and Technology Act 1990 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Contracts in relation to use of funds
Section 8 paragraph (a)
a: ensure that the process for determining the allocation of funds for the production of outputs relating to public good science and technology is designed to ensure contestability in the allocation of those funds; and. .
4: Foundation to fund schemes at direction of Minister
Section 8A(3) paragraph (a)
a: the scheme is intended to do any 1 or more of the following:
i: develop, or assist in the development of, skills relating to research, science, and technology, or any of them:
ii: facilitate research:
iii: promote or facilitate the application of the results of research:
iv: promote or facilitate the application of technological developments; and . |
DLM88540 | 2001 | Public Audit Act 2001 | 1: Title
This Act is the Public Audit Act 2001.
1: Preliminary
2: Commencement
This Act comes into force on 1 July 2001.
3: Purpose of this Act
The purpose of this Act is to—
a: establish the Controller and Auditor-General as an officer of Parliament; and
b: reform and restate the law relating to the audit of public sector organisations.
4: Interpretation
In this Act, unless the context otherwise requires,— appointed auditor section 32 section 33 auditing and assurance standard section 5 Auditor-General section 7 sections 21 24 to 30 Crown
a: means Her Majesty the Queen in right of New Zealand; and
b: includes all Ministers of the Crown and all departments; but
c: does not include—
i: an Office of Parliament; or
ii: a Crown entity; or
iii: a State enterprise named in Schedule 1 Crown entity section 2(1) department section 2(1) Deputy Auditor-General section 11 document
a: anything on which there is writing or any image; and
b: anything on which there are marks, figures, symbols, or perforations having a meaning for persons qualified to interpret them; and
c: anything from which sounds, images, or writing can be reproduced, with or without the aid of anything else employee section 16 entity financial reporting standard section 5 FMC reporting entity section 451 local authority section 5(1) office of Parliament section 2(1) public entity section 5 State enterprise section 2 subsidiary
a: means a subsidiary within the meaning of sections 5 to 8
b: includes an entity that is classified as a subsidiary in any relevant Section 4 approved financial reporting standard repealed 1 July 2011 section 12 Financial Reporting Amendment Act 2011 Section 4 auditing and assurance standard replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 4 department inserted 7 August 2020 section 135 Public Service Act 2020 Section 4 financial reporting standard replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 4 FMC reporting entity inserted 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 4 issuer repealed 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 4 local authority substituted 1 July 2003 section 262 Local Government Act 2002 Section 4 subsidiary amended 1 July 2011 section 12 Financial Reporting Amendment Act 2011
5: Meaning of public entity
1: In this Act, public entity
a: the Crown:
b: each office of Parliament, except where another auditor has been appointed for that office under section 45F(1)(b)
c: an entity of a class described in Schedule 1
d: an entity listed in Schedule 2
e: an entity in respect of which the Auditor-General is the auditor under any other enactment (other than section 19
f: an entity which is controlled by 1 or more entities of the kinds referred to in paragraphs (a) to (e).
2: For the purposes of subsection (1)(f), an entity is controlled by 1 or more other entities if—
a: the entity is a subsidiary of any of those other entities; or
b: the other entity or entities together control the entity within the meaning of any relevant
c: the other entity or entities can together control directly or indirectly the composition of the board of the entity within the meaning of sections 7 8
3: Despite subsections (1) and (2), an entity is not a public entity if,—
a: but for this subsection, it would be a public entity only by virtue of the application of both subsection (1)(f) and subsection (2)(c); and
b: it is specifically referred to in an enactment (either by name or otherwise); and
c: that enactment expressly requires or permits its financial statements to be audited by a person other than the Auditor-General. Section 5(1)(b) amended 25 January 2005 section 37(1) Public Finance Amendment Act 2004 Section 5(2)(b) amended 1 July 2011 section 12 Financial Reporting Amendment Act 2011
6: Act to bind the Crown
This Act binds the Crown.
2: Controller and Auditor-General and Deputy Controller and Auditor-General
Auditor-General
7: Controller and Auditor-General
1: There is an officer of Parliament called the Controller and Auditor-General.
2: The Controller and Auditor-General is appointed by the Governor-General on the recommendation of the House of Representatives.
8: Auditor-General to hold no other office
The Auditor-General is not capable of being a member of Parliament or of a local authority and must not, without the approval of the Speaker of the House of Representatives, hold any other office or take on any other occupation.
9: Duty to act independently
The Auditor-General must act independently in the exercise and performance of the Auditor-General’s functions, duties, and powers.
10: Corporate status
1: The Auditor-General is a corporation sole with perpetual succession and a seal of office.
2: The Auditor-General has and may exercise all the rights, powers, and privileges and incur all the liabilities and obligations of a body corporate of full capacity. Deputy Auditor-General
11: Deputy Controller and Auditor-General
1: There is an officer of Parliament called the Deputy Controller and Auditor-General.
2: The Deputy Controller and Auditor-General is appointed by the Governor-General on the recommendation of the House of Representatives.
3: Sections 8 9
12: Functions, duties, and powers of Deputy Auditor-General
1: The Deputy Auditor-General has and may exercise, to the same extent as the Auditor-General, all the functions, duties, and powers of the Auditor-General.
2: The exercise by the Deputy Auditor-General of the Auditor-General’s functions, duties, and powers is subject to the control of the Auditor-General.
3: If there is a vacancy in the office of the Auditor-General, or if the Auditor-General is absent from duty for any reason, the Deputy Auditor-General has and may exercise all the functions, duties, and powers of the Auditor-General for as long as the vacancy or absence continues.
4: The fact that the Deputy Auditor-General exercises any function, duty, or power of the Auditor-General is, in the absence of evidence to the contrary, conclusive evidence of the Deputy Auditor-General’s authority to do so. Administrative provisions
13: Administrative provisions applying to Auditor-General, Deputy Auditor-General, and Auditor-General’s employees
The provisions set out in Schedule 3
3: Audits and reports
Audits of public entities
14: Auditor of public entities
1: The Auditor-General is the auditor of every public entity.
2: Nothing in sections 15 to 19
15: Financial report audit
1: The Auditor-General must from time to time audit the financial statements, accounts, and other information that a public entity is required to have audited.
2: In the case of an audit of a department (within the meaning of section 2(1)
3: In the case of an audit of an FMC reporting entity
4: If another enactment that would otherwise apply to a public entity (other than an FMC reporting entity) requires an audit of the public entity or the audit report (or both) to comply with auditing and assurance standards, that requirement does not apply in relation to the public entity. Section 15(2) added 25 January 2005 section 37(1) Public Finance Amendment Act 2004 Section 15(3) added 1 July 2011 section 12 Financial Reporting Amendment Act 2011 Section 15(3) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 15(4) inserted 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
15A: Auditor-General may ask for quality review in respect of audits of
FMC reporting entities
1: The Auditor-General may ask the Financial Markets Authority to arrange for a quality review to be carried out of the systems, policies, and procedures applying to the employees of the Auditor-General who assist in the carrying out of audits of FMC reporting entities
2: The purpose of a quality review under this section is to provide the Auditor-General with advice on whether those systems, policies, and procedures are satisfactory in terms of—
a: promoting, in relation to audits of FMC reporting entities
b: otherwise promoting reasonable care, diligence, and skill in the carrying out of those audits.
3: The Auditor-General must take reasonable steps to ensure that the period between quality reviews carried out under this section does not exceed 4 years.
4: The Financial Markets Authority may—
a: prepare a report on a quality review carried out under this section; and
b: include recommendations in the report.
5: The Auditor-General must have regard to a report prepared under subsection (4) (but is not required to comply with any recommendations). Section 15A inserted 1 July 2012 section 82 Auditor Regulation Act 2011 Section 15A heading amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 15A(1) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 15A(2)(a) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
16: Performance audit
1: The Auditor-General may at any time examine—
a: the extent to which a public entity is carrying out its activities effectively and efficiently:
b: a public entity’s compliance with its statutory obligations:
c: any act or omission of a public entity, in order to determine whether waste has resulted or may have resulted or may result:
d: any act or omission showing or appearing to show a lack of probity or financial prudence by a public entity or 1 or more of its members, office holders, and employees.
2: An audit under this section may relate to 1 or more public entities.
3: Subsection (1)(a) does not apply to any registered bank (as defined in section 2(1)
4: If subsection (1)(a) applies and there is an applicable government or local authority policy to which the public entity is required to adhere, the examination is to be limited to the extent to which activities are being carried out effectively and efficiently in a manner consistent with that policy. Section 16(3) replaced 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021
17: Other auditing services
The Auditor-General may, with the agreement of a public entity, perform for that entity any services of a kind that it is reasonable and appropriate for an auditor to perform.
18: Inquiries by Auditor-General
1: The Auditor-General may inquire, either on request or on the Auditor-General’s own initiative, into any matter concerning a public entity’s use of its resources.
2: Subsection (1) does not apply to any registered bank (as defined in section 2(1)
3: If subsection (1) applies and there is an applicable government or local authority policy to which the public entity is required to adhere, the inquiry is to be limited to the extent to which the public entity is using its resources in a manner consistent with that policy. Section 18(2) replaced 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Audits of other entities
19: Auditor of other entities
1: At the request of an entity that is not a public entity, the Auditor-General may enter into an arrangement with that entity to be its auditor.
2: Before entering into an arrangement, the Auditor-General must be satisfied that—
a: the entity exists for a public purpose; and
b: the entity is, or ought reasonably to be, accountable to any or all of the Crown, the House of Representatives, the public, or a section of the public for the exercise of its functions and the management of its resources; and
c: it is not practicable for those to whom the entity is, or ought reasonably to be, accountable to appoint an auditor of the entity; and
d: it is practicable and in the public interest that the Auditor-General accepts the appointment.
3: An arrangement may be for any term not exceeding 3 years and may be renewed from time to time.
4: The following sections and Parts apply to an entity audited by arrangement as if references in those sections to a public entity were references to the entity and with any other necessary modifications:
a: section 15
b: section 17
c: section 21
d: section 23
e: Part 4
f: Part 5
g: section 41
h: section 42 Reports
20: Reports to House of Representatives
In addition to the annual report prepared under section 37
21: Reports to Minister, committees, etc
The Auditor-General may report to a Minister, a committee of the House of Representatives, a public entity, or any person on any matter arising out of the performance and exercise of the Auditor-General’s functions, duties, and powers that the Auditor-General considers it desirable to report on.
22: Publication of Auditor-General’s report relating to public entity named or described in Local Government Official Information and Meetings Act 1987
If the Auditor-General has prepared a report under section 20 section 21 Schedules 1 2
a: the Auditor-General may direct the public entity to table the report during a meeting of the public entity that is open to the public; and
b: the public entity must do so at the next such meeting.
23: Publication of auditing standards
1: The Auditor-General must publish, by way of a report to the House of Representatives, the auditing standards that the Auditor-General applies, or intends to apply, to the conduct of audits and inquiries, and the provision of other auditing services, under this Part.
2: A report under subsection (1) must be prepared at least once every 3 years.
3: If requested to do so by any person, the Auditor-General must supply a copy of any report under subsection (1) to that person on payment by that person of a reasonable fee determined by the Auditor-General.
4: In each annual report prepared under section 37
5: A report under subsection (1) and an annual report prepared under section 37 Section 23(5) added 1 July 2011 section 12 Financial Reporting Amendment Act 2011
4: Information-gathering powers and disclosure of information
24: Access to information
The chief executive and the governing body of a public entity must ensure that the Auditor-General has access at all times to the documents of the entity relating to the performance and exercise of the Auditor-General’s functions, duties, and powers.
25: Power of Auditor-General to obtain information
1: For the purposes of exercising or performing the Auditor-General’s functions, duties, or powers, the Auditor-General may require a public entity or any person to:
a: produce to the Auditor-General a document in the entity’s or person’s custody, care, or control:
b: provide the Auditor-General with information or an explanation about any information.
2: If any information is required from a person who is not a member, employee, or office holder of the public entity, the Auditor-General must—
a: advise the person in writing of the nature of the information; and
b: state that it is required under this section; and
c: if the person is an individual and the information required is personal information about that individual, comply with information privacy principle 3 set out in section 22
3: The Auditor-General may pay the person referred to in subsection (2) the reasonable costs and disbursements of providing the information and may recover those costs and disbursements from the public entity to which the information relates. Section 25(2)(c) amended 1 December 2020 section 217 Privacy Act 2020
26: Power to examine on oath
1: The Auditor-General may, in the course of the exercise or performance of the Auditor-General’s functions, duties, or powers, require a person to give evidence.
2: The Auditor-General may require the evidence to be given either orally or in writing.
3: For the purpose of examining a person, the Auditor-General may administer an oath.
4: Section 108
5: The Auditor-General may pay a person the reasonable costs and expenses incurred by that person in giving evidence to the Auditor-General.
6: The Auditor-General may recover those costs and expenses from the public entity to which the evidence relates.
27: Power to inspect bank accounts
1: For the purpose of exercising or performing the Auditor-General’s functions, duties, or powers, the Auditor-General may examine or audit the account of any person in any bank and, for that purpose, may—
a: require any officer of the bank to produce any document or provide any information relating to that account in the bank’s custody, care, or control; and
b: take copies of any document so produced.
2: The powers conferred on the Auditor-General by subsection (1) must not be exercised unless the Auditor-General is authorised to do so by warrant issued by a District Court Judge on the grounds that the Auditor-General has reason to believe that money belonging to a public entity has been fraudulently or wrongfully paid into the person’s account.
28: Protection for persons supplying information
1: A person who is required by any enactment to maintain secrecy or not to disclose information relating to a matter may be required by the Auditor-General to do any of the things referred to in sections 25 26 27
2: Compliance with a requirement of the Auditor-General under the sections referred to in subsection (1) is not a breach of the relevant obligation of secrecy or non-disclosure or of the enactment by which that obligation is imposed.
29: Access to premises
For the purpose of obtaining documents, information, or other evidence relevant to any matter arising in the exercise or performance of the Auditor-General’s functions, duties, or powers, the Auditor-General may, at all reasonable times,—
a: enter into and remain on—
i: a public entity’s premises; or
ii: any other premises if so authorised by warrant issued by a District Court Judge on the grounds that there is reasonable cause to suspect that documents, information, or other evidence relating to the activities of that public entity are or may be held at those premises:
b: carry out a search for a document, examine a document, and make copies of a document or parts of a document.
30: Disclosure by Auditor-General
1: This section applies to the disclosure of information by the Auditor-General.
2: The Auditor-General may disclose such information as the Auditor-General considers appropriate to disclose in the exercise of his or her functions, duties, or powers.
3: Before disclosing any information, the Auditor-General must consider—
a: the public interest:
b: an auditor’s professional obligations concerning confidentiality of information:
c: the interests described in sections 6 7 9(2)
4: Section 30(4) repealed 1 December 2020 section 217 Privacy Act 2020
31: Self-incrimination
1: A person is not excused from answering a question or giving any information or document under this Act on the ground that to do so may incriminate or tend to incriminate that person.
2: A self-incriminating statement or document made or given under this Act is not admissible as evidence in criminal proceedings against that person except on the prosecution of that person for an offence against section 108 section 39(1)(c)
5: Appointments and delegations
Appointment of auditors
32: Appointment of auditors for financial report audit
1: The Auditor-General may from time to time appoint any of the following persons or bodies to act as an auditor and to carry out 1 or more audits of entities under section 15 section 17
a: an employee of the Auditor-General:
b: a person qualified to be an auditor of an entity under section 36(1) and (4) Financial Reporting Act 2013
c: a partnership, if all or some of the partners are persons who are qualified to be appointed as auditors of an entity under section 36(1) and (4) Financial Reporting Act 2013
1A: The Auditor-General must, before appointing a person to act as the auditor of an FMC reporting entity
a: is a natural person who—
i: meets the prescribed minimum standards for the issue of a licence prescribed under subpart 3
ii: has the competence, qualifications, and experience that are equivalent to, or as satisfactory as, those standards; or
b: is a body corporate that is a registered audit firm (within the meaning of the Auditor Regulation Act 2011
1B: The Auditor-General must, before appointing a partnership to act as the auditor of an FMC reporting entity
a: meets the prescribed minimum standards for the registration of an audit firm prescribed under subpart 3
b: meets other requirements that are equivalent to, or as satisfactory as, those standards.
1C: Subsections (1A) and (1B) apply only after the relevant minimum standards have been prescribed under subpart 3
2: If a partnership is appointed under subsection (1)(c),—
a: the appointment of the partnership is to be treated as an appointment of all the persons who are partners in the firm from time to time; and
b: if the partnership includes persons who are not qualified to be appointed as auditors of an entity under section 36(1) and (4) Financial Reporting Act 2013
3: An appointment must be in writing and may be made subject to any restrictions and conditions that the Auditor-General thinks fit. Section 32(1)(b) replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 32(1)(c) replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 32(1A) inserted 1 July 2012 section 82 Auditor Regulation Act 2011 Section 32(1A) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 32(1A)(a) replaced 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 32(1A)(b) replaced 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 32(1B) inserted 1 July 2012 section 82 Auditor Regulation Act 2011 Section 32(1B) amended 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 32(1C) inserted 1 July 2012 section 82 Auditor Regulation Act 2011 Section 32(2)(b) replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
33: Appointment of auditors for performance audit or inquiries
1: The Auditor-General may from time to time appoint to carry out 1 or more performance audits under section 16 section 18
2: An appointment may be made for 1 or more public entities and for any period of time.
3: An appointment must be in writing and may be made subject to any restrictions and conditions that the Auditor-General thinks fit.
34: Powers of appointed auditor
When appointing an auditor under section 32 section 33
a: report under section 21
b: have access to information under section 24
c: require a public entity or other person to produce a document or to provide information under section 25
d: inspect bank accounts under section 27
e: apply section 28
f: exercise the powers under section 29
g: disclose information under section 30 Delegations
35: Delegation of powers
1: The Auditor-General may from time to time, either generally or particularly, delegate all or any of the Auditor-General’s functions, duties, and powers (including this power of delegation) to an employee of the Auditor-General.
2: However, the Auditor-General must not delegate—
a: the power of appointment of auditors under section 32 section 33
b: the function of reporting to the House of Representatives; or
c: the power to require the tabling of a public report by a local authority.
3: A delegation—
a: must be in writing; and
b: may be made subject to any restrictions and conditions the Auditor-General thinks fit; and
c: is revocable at any time, in writing; and
d: does not prevent the performance or exercise of a duty, function, or power by the Auditor-General.
4: A person to whom any functions, duties, or powers are delegated may perform and exercise them in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.
5: A person purporting to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
6: Accountability
36: Annual plan of Auditor-General
1: At least 60 days before the beginning of each financial year, the Auditor-General must prepare and submit to the Speaker of the House of Representatives a draft annual plan that—
a: describes the Auditor-General’s proposed work programme for that year; and
b:
2: The Speaker must present the draft annual plan to the House of Representatives as soon as reasonably practicable.
3: The Auditor-General, after considering any comments of the Speaker or any committee of the House of Representatives that considered the draft annual plan, may amend the plan as the Auditor-General thinks necessary but must indicate in the plan the nature of any changes to the Auditor-General’s work programme priorities requested by the Speaker or any committee of the House of Representatives but not included in the plan.
4: The Auditor-General must present a completed annual plan to the Speaker before the beginning of each financial year and the Speaker must then present it to the House of Representatives.
5: Section 36(1)(b) repealed 25 January 2005 section 37(1) Public Finance Amendment Act 2004 Section 36(5) repealed 18 July 2013 section 57 Public Finance Amendment Act 2013
37: Annual report of Auditor-General
1: As soon as practicable after the end of each financial year, the Auditor-General must prepare and present an annual report to the House of Representatives in accordance with section 43
2: The report must include—
a:
b: an account of the implementation of the annual plan required under section 36
c: a list of entities audited by the Auditor-General under an arrangement in accordance with section 19 Section 37(1) amended 25 January 2005 section 37(1) Public Finance Amendment Act 2004 Section 37(2)(a) repealed 25 January 2005 section 37(1) Public Finance Amendment Act 2004
38: Independent auditor to audit Auditor-General
1: The House of Representatives must, by resolution, in respect of each financial year appoint an independent auditor to audit the financial statements, accounts, and other information relating to that year and for this purpose the Auditor-General is to be regarded as a public entity under this Act.
2: Parts 3 section 23 4 section 42
7: Miscellaneous provisions
39: Offences
1: Every person commits an offence who, without lawful justification or excuse,—
a: intentionally obstructs, hinders, or resists the Auditor-General or any other person in the exercise of the Auditor-General’s or other person’s powers under this Act:
b: intentionally refuses or fails to comply with any lawful requirement of the Auditor-General or any other person under this Act:
c: makes a statement or gives information to the Auditor-General or any other person exercising powers under this Act, knowing that the statement or information is false or misleading:
d: represents directly or indirectly that the person holds any authority under this Act when that person knowingly does not hold that authority.
2: A person who commits an offence against subsection (1) is liable on
a: in the case of an individual, to a fine not exceeding $2,000:
b: in the case of a person or organisation other than an individual, to a fine not exceeding $5,000. Section 39(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
40: Time for commencing proceedings
1: Despite anything to the contrary in section 25
2: Despite the Criminal Procedure Act 2011 Section 40(1) replaced 1 July 2013 section 413 Criminal Procedure Act 2011 Section 40(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
41: Protection from liability
1: This section applies to—
a: the Auditor-General in his or her personal capacity; and
b: the Deputy Auditor-General in his or her personal capacity; and
c: every person employed by the Auditor-General, whether acting as an appointed auditor or not, in connection with the performance or exercise of the Auditor-General’s functions, duties, or powers.
2: No person to whom this section applies is personally liable for an act or omission in connection with performing or exercising a function, duty, or power under this Act, unless the act or omission was done in bad faith.
3: Subsection (2) does not limit any disciplinary functions, powers, or duties of any person or body that apply to any of the persons to whom this section applies by virtue of their membership of a professional body.
42: Audit fees
1: The Auditor-General may charge fees to a public entity for the provision of services under any of sections 14 15 16 17
2: The fees must be reasonable, having regard to—
a: the nature and extent of the services provided; and
b: the requirements of auditing standards published under section 23
c: the qualifications and experience of the persons necessarily engaged in providing the services; and
d: any other matters the Auditor-General thinks fit.
3: The Auditor-General may permit an appointed auditor to recover fees directly from the public entity.
4: The public entity must pay any fees to the Auditor-General or to the appointed auditor on the completion of the whole or any part of the audit when requested to do so in writing.
5: If the Auditor-General and the public entity fail to agree as to the reasonableness of a fee, the matter must be submitted to arbitration and the provisions of the Arbitration Act 1996
43: Exemption from income tax
For the purposes of sections CW 38 CW 39 Section 43 amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
44: Amendments to Schedule 2
1: The Governor-General may from time to time, by Order in Council on the recommendation of the Minister of Finance, amend Schedule 2
a: by adding the name of an entity that is to be a public entity; or
b: by omitting the name of an entity that no longer exists; or
c: by correcting the name of an entity.
2: The Minister of Finance must not recommend the addition of the name of an entity to Schedule 2 paragraphs (a) to (d) of section 19(2)
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 44(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
8: Amendments, repeals, revocations, and savings
Amendments to Local Government Act 1974
45: Returns of expenditure
Section 45 repealed 1 July 2003 section 266 Local Government Act 2002
46: Assessment of tax
Amendment(s) incorporated in the Act(s)
47: Failure to comply with financial reporting requirements
Section 47 repealed 1 July 2003 section 266 Local Government Act 2002
48: Person carrying on transport or ferry service may sell undertaking to territorial authority
Section 48 repealed 1 July 2003 section 266 Local Government Act 2002
49: New section 594ZC substituted
Section 49 repealed 1 July 2003 section 266 Local Government Act 2002
50: New heading and sections 706A to 706C inserted
Section 50 repealed 1 July 2003 section 266 Local Government Act 2002
51: Infrastructure Auckland to be local authority for certain purposes
Section 51 repealed 1 July 2004 section 48(1)(c) Local Government (Auckland) Amendment Act 2004 Consequential amendments
52: References to Audit Department and Audit Office
Every reference to the Audit Department or the Audit Office in any enactment is to be read as a reference to the Auditor-General.
53: Consequential amendments to enactments
The enactments listed in Schedule 4 Consequential repeals and revocation
54: Consequential repeals and revocation
1: The following enactments are repealed:
a: Public Finance Act 1977 (1977 No 65)
b: Public Finance Amendment Act 1994 (1994 No 18)
2: The Public Finance (Poutama Trust Audit) Order 1990 (SR 1990/6)
9: Transitional provisions
Continuation of offices
55: Controller and Auditor-General and Deputy Controller and Auditor-General
Despite the enactment of this Act, each of the persons holding office as Controller and Auditor-General or Deputy Controller and Auditor-General immediately before the commencement of this Act continues, after that commencement, to hold office on the same terms and conditions as those on which they held office before that commencement. Audit Department
56: Audit Department
The Audit Department is abolished.
57: Transfer of Crown assets and liabilities to Auditor-General
1: Despite any Act, rule of law, deed, or agreement, and for such consideration and on such terms and conditions as the Minister of Finance may agree with the Auditor-General, that Minister may, on behalf of the Crown,—
a: transfer to the Auditor-General assets and liabilities of the Crown; and
b: authorise the Auditor-General to act on behalf of the Crown in managing assets or liabilities of the Crown; and
c: grant to the Auditor-General leases, licences, easements, permits, or rights of any kind in respect of any assets or liabilities of the Crown.
2: The Minister of Finance must present to the House of Representatives any contract or other document entered into under subsection (1) within 12 sitting days after the date of that contract or document.
58: Rights and liabilities of the Crown and third parties following transfer or grant
1: If there is a transfer or grant of any asset, liability, authority, or rights to the Auditor-General under any of paragraphs (a) to (c) of section 57(1)
a: the transfer or grant does not entitle any other person to terminate, alter, or in any way affect the rights or liabilities of the Crown or the Auditor-General under any Act or any deed or agreement:
b: if the transfer or grant is registrable, the person responsible for keeping the register must register the transfer or grant immediately after written notice of the transfer or grant is received by that person from any person authorised for this purpose by the Minister of Finance:
c: the presentation to the House of Representatives of any contract or other document relating to the transfer or grant is to be treated as notice of the transfer or grant and, after the date of the contract or document, any affected third party is to deal with the Auditor-General in place of the Crown:
d: the Crown remains liable to any third party as if the transfer or grant had not been made, but the Auditor-General must indemnify the Crown in respect of any liability to the third party:
e: any satisfaction or performance by the Auditor-General in respect of the asset, liability, authority, or rights is to be treated as also satisfaction or performance by the Crown:
f: any satisfaction or performance in respect of the asset or liability, authority, or rights by any third party to the benefit of the Auditor-General is to be treated as also to the benefit of the Crown.
2: No provision in any deed or agreement limiting the Crown’s right to sell any assets to third parties, or for determining the consideration for the sale of any assets to third parties, or obliging the Crown to account to any person for the whole or part of the proceeds of sale by the Crown of any assets to third parties, or obliging the Crown to pay a greater price than otherwise by reason of or as a consequence of the sale of any assets to third parties, has any application or effect in respect of any contract or other document or transfer entered into or effected under this Act or under such a contract or other document or transfer.
3: Any asset, liability, authority, or rights of the Crown may be transferred or granted to the Auditor-General under this Act whether or not any Act or deed or agreement relating to the asset, liability, authority, or rights permits such transfer or grant or requires any consent to such a transfer or grant. Employees in Audit Department to be employees of Auditor-General
59: Transitional provisions in respect of employees of Audit Department
Every person employed in the Audit Department immediately before the date of commencement of this Act is, on and from that date, an employee of the Auditor-General and is employed under the same terms and conditions as applied to that employee immediately before that date.
60: Protection of conditions of employment
For the purposes of every enactment, law, contract, and agreement relating to the employment of a person referred to in section 59
a: the contract of employment of that employee that applied immediately before the commencement of this Act in respect of that person’s employment in the Audit Department is to be treated as unbroken; and
b: the employee’s period of service with the Audit Department and every other period of service of that employee that was recognised by the Audit Department as continuous service is to be treated as a period of service with the Auditor-General.
61: No compensation for technical redundancy
A person to whom section 59
62: Membership of Government Superannuation Fund
If a person to whom section 59 Government Superannuation Fund Act 1956
a: that person is to be regarded for the purposes of the Government Superannuation Fund Act 1956
b: the Government Superannuation Fund Act 1956 Transitional audits
63: Audits for financial years ending before commencement of Act
Nothing in this Act—
a: limits or affects any duty or power that the Auditor-General had before the date of commencement of this Act to undertake and complete an audit of an entity for any financial year ending before that date; or
b: requires the Auditor-General to undertake or complete an audit of an entity for any financial year ending before that date if the Auditor-General was not the auditor of the entity before that date. |
DLM91203 | 2001 | Securities Amendment Act 2001 | 1: Title
1: This Act is the Securities Amendment Act 2001.
2: In this Act, the Securities Act 1978 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent. Amendments to principal Act
3: New
section 11 The principal Act is amended by repealing section 11
11: Membership of Commission
1: The Commission must consist of not less than 5, and not more than 10, members, of whom at least 1 must be a barrister or solicitor of at least 7 years' practice.
2: The members of the Commission must be appointed by the Governor-General on the recommendation of the Minister.
3: One member must be so appointed as Chairperson of the Commission.
4: No person may be recommended for appointment as a member of the Commission, unless, in the opinion of the Minister, the person is qualified for appointment, having regard to the functions and powers of the Commission, by virtue of the person's knowledge of, or experience in, industry, commerce, economics, law, accountancy, public administration, or securities.
4: Provisions relating to certain proceedings before Commission
Section 19 subsection (2)
2: At least 1 person who is a barrister or solicitor of the High Court of not less than 7 years' practice must attend at every meeting of the Commission for the purposes of section 44(1)(b), 44B(2), or section 69
5: References to chairperson, etc
The principal Act and the Securities Amendment Act 1988
a: omitting the word Chairman Chairperson
b: omitting the word Chairman's Chairperson's
c: inserting, after the word he or she or she
d: inserting, after the word his or her or her
e: inserting, after the word him or her or her
f: inserting, after the word himself or herself Amendments to Securities Amendment Act 1988
6: Amendments to Securities Amendment Act 1988
1: Section 8(3) Securities Amendment Act 1988 ; and paragraph (b)
c: every individual who had the information and every individual who took part in the decision to buy or sell the securities acted in accordance with the arrangements referred to in paragraph (a)
2: Section 10 Securities Amendment Act 1988 ; and paragraph (b)
c: every individual who had the information and every individual who took part in the decision to buy or sell the securities acted in accordance with the arrangements referred to in paragraph (a)
3: Section 12(2) Securities Amendment Act 1988 ; and paragraph (b)
c: every individual who had the information and every individual who took part in the decision to buy or sell the securities acted in accordance with the arrangements referred to in paragraph (a)
4: Section 14 Securities Amendment Act 1988 ; and paragraph (b)
c: every individual who had the information and every individual who took part in the decision to buy or sell the securities acted in accordance with the arrangements referred to in paragraph (a)
5: Sections 17 18 19(2)(a) 28(1) 29(1) Securities Amendment Act 1988 member holder of securities
6: Section 17 Securities Amendment Act 1988 subsection (4)
4A: Any confidential communications between the solicitor or barrister and any other person for the purposes of establishing whether the public issuer has a cause of action against the insider, are protected by absolute privilege. |
DLM92776 | 2001 | Fishing Industry Board Repeal Act 2001 | 1: Title
1: This Act is
the Fishing Industry Board Repeal Act 2001.
2: In this Act,
the Fishing Industry Board Act 1963 is called the principal Act
2: Commencement
Except as provided
in section 5(7)
3: Regulations
Section 35(1)
of the principal Act is amended by inserting, after paragraph (f),
the following paragraph:
fa: providing for the dissolution of the
Board and for all matters related to the dissolution, including vesting
of the assets and liabilities of the Board: .
4: Assets and liabilities of Board
1: The assets
and liabilities of the Board vest in the Crown on 1 October 2002
unless—
a: the Board recommends to the Minister
alternative arrangements for the vesting of the assets and liabilities;
and
b: the Minister notifies the Board in writing
that he or she considers that the arrangements are satisfactory.
2: The Board
must provide any recommendations for alternative arrangements to the
Minister by 1 July 2002.
5: Repeal of principal Act, revocations, and amendments
to other enactments
1: The principal
Act is repealed.
2: Section 315
of the Fisheries Act 1996 is repealed.
3: The Acts listed
in Part 1
4: The Fish Levy
Regulations 1976 are revoked.
5: The Fish Export
Licensing Regulations 1982 are revoked.
6: The regulations
listed in Part 2
7: This subsection
and subsection (2) come into force on the day after the date on which
this Act receives the Royal assent, and the rest of this section and
the Schedule |
DLM97913 | 2001 | Commerce Amendment Act (No 2) 2001 | 1: Title
1: This Act is the Commerce Amendment Act (No 2) 2001.
2: In this Act, the Commerce Act 1986 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: New
Part 4A The principal Act is amended by inserting, after Part 4
4A: Provisions applicable to electricity industry
57D: Interpretation
1: In this Part, unless the context otherwise requires,— consumer section 2(1) of the Electricity Act 1992 electricity business section 3 of the Electricity Industry Reform Act 1998 electricity lines business section 4 of the Electricity Industry Reform Act 1998 information disclosed information subpart 3 involved section 7 of the Electricity Industry Reform Act 1998 large electricity distributor large electricity lines large line owner line owner electricity distributor section 2(1) of the Electricity Act 1992 national grid prescribed voltage electric line small lines business
a: the total circuit length of the prescribed voltage electric lines owned by the person (or over which electricity is conveyed by the person, as the case may be) is less than 25 kilometres; or
b: the electricity conveyed by the person (or the electricity conveyed over lines owned by the person, as the case may be) is less than 20 gigawatt hours per annum; or
c: the electricity conveyed by the person (or the electricity conveyed over lines owned by the person, as the case may be) is conveyed to less than 500 consumers; or
d: the lines owned by the person (or over which electricity is conveyed by the person, as the case may be) are not connected, directly or indirectly, to the national grid Transpower
2: The prescribed voltage electric lines, the electricity conveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a person ( person A subsection (1) person B
1: Controlled Goods Or Services
57E: Purpose
The purpose of this subpart is to promote the efficient operation of markets directly related to electricity distribution and transmission services through targeted control for the long-term benefit of consumers by ensuring that suppliers—
a: are limited in their ability to extract excessive profits; and
b: face strong incentives to improve efficiency and provide services at a quality that reflects consumer demands; and
c: share the benefits of efficiency gains with consumers, including through lower prices.
57F: Commission, not Minister, may declare that goods or services supplied by large electricity lines businesses are controlled
1: The Commission may, by notice in the Gazette
2: No Order in Council may be made under Part IV in
3: A declaration must be made by notice in the Gazette
4: The Commission must publish the declaration on the Internet and in any other manner (if any) that the Commission considers appropriate.
57G: Thresholds for declaration of control
1: The Commission must, as soon as practicable after the commencement of this subpart, and may from time to time—
a: consult with participants in the electricity distribution and transmission markets and with consumers as to possible thresholds for the declaration of control in relation to large electricity lines businesses; and
b: set thresholds for the declaration of control in relation to large electricity lines businesses; and
c: publish those thresholds in the Gazette
2: Thresholds can be expressed in quantitative or qualitative terms.
57H: Process for making decisions on declaration of control
The Commission must—
a: assess large electricity lines businesses against the thresholds set under this subpart; and
b: identify any large electricity lines business that breaches the thresholds; and
c: determine whether or not to declare all or any of the goods or services supplied by all or any of the identified large electricity lines businesses to be controlled, taking into account the purpose of this subpart; and
d: in respect of each identified large electricity lines business,—
i: make a control declaration; or
ii: publish the reasons for not making a control declaration in the Gazette
57I: Process before declaration made
1: Before making any declaration of control under section 57F
a: publish its intention to make a declaration and invite interested persons to give their views on the matter; and
b: give a reasonable opportunity to interested persons to give those views; and
c: have regard to those views.
2: The notice of intention to declare must—
a: be published in the Gazette
b: specify that the matter relates to the making of a declaration; and
c: invite interested persons to give their views on that matter to the Commission and specify the time and manner within which they may do so.
57J: Effect of declaration of control
1: A declaration of control under this subpart has the same effect as if it were an Order in Council made under section 53 sections 55 and 57B and Parts V, VI, and VII
2: Subsection (1) section 62 of the Electricity Act 1992 section 62(3) of that Act
57K: Priorities
1: The Commission may prioritise its duties under this subpart by (without limitation)—
a: assessing 1 or any (but not necessarily all) of the large electricity lines businesses; or
b: exercising its powers to make a declaration of control in relation to 1 or any (but not necessarily all) of the large electricity lines businesses that are identified as having breached any thresholds set under this subpart; or
c: making provisional authorisations or accepting undertakings (rather than making final authorisations) in respect of 1 or more large electricity lines businesses to which a declaration of control relates.
2: In so prioritising, the Commission must have regard to the purpose of this subpart and may also have regard to any other factors it considers relevant, including (without limitation) all, any, or none of the following:
a: the size of the business:
b: the recent performance of the business, including prices charged and the extent of any excess profits:
c: the quality of the information provided to the Commission:
d: the extent to which businesses have breached the thresholds set by the Commission.
57L: Maximum of 5 years for duration of declaration
1: Any declaration of control under this subpart expires on the earlier of—
a: the expiry date stated in the declaration; or
b: the expiry of 5 years from the date of the declaration.
2: The Commission may make a further declaration of control in relation to the electricity lines business only after considering the purpose of this subpart.
57M: Authorisations and undertakings
In exercising its powers under sections 70 to 72 section 70A, and sections 70 to 72
57N: Commission may lift control
1: The Commission may, by notice in the Gazette
2: The Commission may make a further declaration of control in relation to the electricity lines business only after considering the purpose of this subpart.
2: Transpower's Pricing Methodology
57O: Commission may be required to authorise Transpower's pricing methodology
1: The Governor-General may, by Order in Council made on the recommendation of the Minister of Energy, require the Commerce Commission to make an authorisation in respect of all or any component of Transpower's pricing methodology.
2: The Governor-General may make an Order in Council under subsection (1) section 57F
3: The Minister of Energy must consult with Transpower and other affected parties before making a recommendation.
57P: Authorisations in respect of Transpower's pricing methodology
1: If an Order in Council is made under section 57O
2: The Commission may also, as part of the authorisation, do any of the following:
a: define the charges for individual electricity generators, electricity retailers, electricity lines businesses, customers, consumers, or classes of any of those persons:
b: impose quality standards generally or in respect of the supply of electricity line business activities to individual electricity generators, electricity retailers, electricity lines businesses, customers, or consumers, or classes of any of those persons:
c: require a specified person or class of persons receiving (either directly or indirectly) goods or services from Transpower to pay a specified amount or proportion of the total price, or the total price, for those goods or services:
d: authorise a way or ways in which Transpower may apply the methodology.
3: This section does not limit the generality of any authorisation that may be made in respect of Transpower under this Act if goods and services have also been declared to be controlled.
57Q: Authorisations and undertakings
In exercising its powers under sections 70 and 72 section 70A
57R: Enforcement of authorisations
1: If an authorisation is in force under this subpart, Transpower must not supply any goods or services to which the authorisation applies except in accordance with the authorisation (or with an undertaking given under section 72
2: Subsection (1) section 62 of the Electricity Act 1992 section 62(3) of that Act
3: This Act, including (without limitation) sections 86 and 87 subsection (1) section 55
4: The authorisation has the same effect as if it were made under section 70 section 57B and Parts V, VI, and VII
5: An amount charged by Transpower in accordance with a methodology specified by the Commerce Commission authorisation (or by an undertaking given under section 72
a: is recoverable in any court of competent jurisdiction as a debt due to Transpower; and
b: may be challenged in any proceedings to recover the debt on the ground that Transpower has incorrectly applied the methodology in a manner that is adverse to the payer and that was not authorised by the Commission, but the methodology itself may not be challenged.
57S: Revocation of authorisations
1: The Governor-General may, by Order in Council, revoke an authorisation made under this subpart.
2: Section 65
3: Information Disclosure
57T: Information disclosure
1: The purpose of this subpart is to promote the efficient operation of markets directly related to electricity distribution and transmission services by ensuring that large line owners and large electricity distributors make publicly available reliable and timely information about the operation and behaviour of those businesses, so that a wide range of people are informed about such factors as profits, costs, asset values, price (including terms and conditions of supply), quality, security, and reliability of supply of those businesses.
2: The Commerce Commission—
a: must require large line owners and large electricity distributors to disclose information concerning their business as a line owner or as an electricity distributor:
b: may require, for any disclosed information, the adoption, in the preparation or compilation of that information, of any methodology that is required by the Commerce Commission:
c: may require any person ( person A person B
3: Information required under subsection (2)
a: financial statements:
b: asset values and valuation reports:
c: prices and pricing methodologies:
d: contracts:
e: transactions with related parties:
f: financial and non-financial performance measures:
g: plans and forecasts:
h: policies and methodologies in these or other areas.
4: The Commission must publish requirements made under this section—
a: by publishing a notice in the Gazette
b: by making copies of the requirements available for inspection, free of charge,—
i: at the Commission (during ordinary office hours); and
ii: on the Internet in an electronic form that is publicly accessible (at all reasonable times); and
c: by making copies of them available for purchase at a reasonable price.
5: The notice in the Gazette
6: In this section, unless the context otherwise requires,— disclose prescribed
7: The Commission may not require the disclosure of the names of the parties to, or the terms and conditions of, contracts made before 1 August 1990 but, if the contract is modified after that date, the Commission may require the disclosure of information as to the modification, the term or condition that has been modified (including its context), and the names (or characteristics) of the parties.
8: Requirements under this section may—
a: prescribe the form and manner in which information is to be disclosed:
b: require disclosed information, or information from which disclosed information is derived (in whole or in part), to be certified, in the prescribed form and manner, by persons belonging to any specified class of persons:
c: set rules about when and for how long information must be disclosed:
d: exempt or provide for exemptions (including provide for the revocation of exemptions), on any terms and conditions, of any person or class of persons from all or any of the requirements:
e: provide for transitional provisions:
f: be made in respect of all or any large line owners and large electricity distributors and in respect of all or part of their business.
57U: Information to be supplied to Commerce Commission
1: Every person who is required under section 57T
a: a copy of all information disclosed under that section, which must be supplied within 5 working days after the information is first made so available:
b: any further statements, reports, agreements, particulars, and other information requested in writing by the Commerce Commission for the purpose of monitoring the person's compliance with the requirements issued under that section.
2: Every person to whom a request is made under subsection (1)(b)
3: The Commission may require all or any statements, reports, agreements, particulars, and information supplied under subsection (1)
57V: Commerce Commission to publish summaries
The Commerce Commission must, as soon as practicable after information is publicly disclosed under this subpart, publish a summary and analysis of the publicly disclosed information for the purpose of promoting greater understanding of the relative performance of individual line owners and electricity distributors, and the changes in performance over time.
57W: Reasonable charge may be imposed for providing copies of statements
1: Any person who is required under section 57T
2: A charge must be no more than is reasonably required to recover the costs of providing those copies.
4: Asset Valuations
Recalibration of asset values of large electricity line owners
57X: Purpose of recalibrations
The purpose of sections 57Z to 57ZC
57Y: Interpretation
In this subpart,— current ODV Handbook information disclosure regulations section 170 of the Electricity Act 1992 system fixed assets
57Z: Large electricity line owners must supply valuation to Commerce Commission
1: Every large electricity line owner must supply a copy of a valuation report relating to its line business system fixed assets to the Commerce Commission no later than 31 August 2001 (or, in the case of Transpower, no later than 30 November 2001).
2: The report must be the most recent report, with a valuation date on or before 31 March 2001 (or, in the case of Transpower, on or before 30 June 2001), carried out for the purpose of regulation 20 of the information disclosure regulations
3: A copy of the certificate in form 7 of those regulations
57ZA: Comprehensive audit of asset values of large electricity line owners
1: The Commerce Commission must, as soon as practicable after receiving a valuation report from a large line owner, carry out a comprehensive audit of the valuation of the line business system fixed assets of the line owner, using the ODV method as set out in the current ODV Handbook.
2: The Commission must publish a document outlining the processes that will be involved in a comprehensive audit, the form that the audit will take, and the circumstances under which the valuation report will be approved.
3: The Commission must have regard to the purpose of this subpart when preparing that document.
57ZB: Procedure after audit of asset values carried out
1: The Commission must, as soon as practicable after completing an audit, notify the line owner whether or not it will approve the valuation report.
2: If the Commission does not approve the valuation report, the notification in subsection (1)
a: give the reasons why the report was not approved; and
b: specify the date by which a revised valuation report must be given to the Commission.
3: The Commission must, as soon as practicable after receiving a revised valuation report, consider the valuation report and notify the line owner of its decision as in subsections (1) and (2)
4: If the line owner does not comply with a requirement to give a revised valuation report that meets the Commission's requirements to the Commission by the specified date, the Commission may revise the valuation report itself.
5: The Commission must have regard to any submissions made to it by the line owner or any user of the line business system fixed assets or any other person when carrying out the audit.
57ZC: Outcome of audit of asset values
1: Every large line owner must publicly disclose, by 31 March 2002, a valuation report that has been approved by the Commission.
2: The line owner must also, within 5 working days of publicly disclosing that valuation report, publish on the Internet a notice stating—
a: that the valuation has been publicly disclosed; and
b: the valuation date of the valuation report; and
c: the valuation of the line business system fixed assets as stated in the report; and
d: whether the valuation of the line business fixed assets has changed as a result of the comprehensive audit process under this Act and, if so, by how much.
3: The information disclosure regulations or, as the case may be, information disclosure requirements issued by the Commission under section 57T
4: The Commission may require a line owner to modify previous disclosures made under the information disclosure regulations so that they are consistent with the new valuation report.
5: The Commission may specify the terms and conditions on which those modifications must be made. Review of valuation methodologies
57ZD: Review of valuation methodologies
The Commission must carry out a review of valuation methodologies for line business system fixed assets as soon as practicable.
57ZE: Process when carrying out review of valuation methodologies
1: When carrying out its review of valuation methodologies under section 57ZD
a: publish its intention to carry out a review of valuation methodologies and invite interested persons to give their views on the matter; and
b: give a reasonable opportunity to interested persons to give those views; and
c: have regard to those views.
2: The notice of intention to carry out a review must—
a: be published in the Gazette
b: specify that the matter relates to the carrying out of a review of valuation methodologies; and
c: invite interested persons to give their views on that matter to the Commission and specify the time and manner in which they may do so.
5: General provisions
57ZF: Powers of Commission
The Commission has, for the purpose of carrying out its functions under this Part, any powers under this Act that it considers are necessary or desirable for that purpose.
57ZG: Powers of entry and inspection
1: The purpose of this section is to provide for access to line business system fixed assets, and to information about those assets, for the purpose of carrying out activities under subpart 4
2: The Commission may authorise any person or persons to exercise all or any of the powers contained in this section in respect of a specified line owner.
3: An authorised person may, at any reasonable time, enter any premises—
a: owned or occupied by the line owner; or
b: on or at which line business system fixed assets, or information relating to those assets, are situated.
4: An authorised person must give reasonable notice to the owner or occupier of the premises (at least 5 working days before entry) of his or her intention to enter the premises.
5: An authorised person may do anything that is reasonably incidental to activities under subpart 4 Electricity Act 1992 Health and Safety in Employment Act 1992
a: carrying out inspections:
b: conducting examinations, tests, and inquiries, or directing personnel of the line owner to conduct examinations, tests, or inquiries:
c: taking photographs and measurements and making sketches and recordings:
d: requiring the line owner, or its personnel, to produce documents or information relating to the line business system fixed assets and permitting the authorised person to examine and make copies or extracts of the documents and information:
e: requiring the line owner, or its personnel, to make or provide statements, in any form and manner the authorised person specifies, about the condition, or other matters relating to the line business system fixed assets.
6: However, this section does not authorise an authorised person to enter a home, except with the consent of an occupier or under a warrant issued under section 98A
57ZH: Authorised persons to prove identity
1: Every authorised person who enters any place under section 57ZG
a: to the extent practicable, give the line owner not less than 5 working days' notice of the proposed entry; and
b: on first entering and, if requested, at any later time, produce to the person apparently in charge of the place the authorisation under section 57ZG
2: If an authorised person enters any place under the authority of this Act and is unable, despite reasonable efforts, to find any person apparently in charge, the authorised person must before leaving the place leave a written notice stating—
a: the person's identity; and
b: the address of a place where the authorised person may be contacted; and
c: the date and time of entry; and
d: the reasons for entering.
57ZI: Offence to obstruct authorised persons
1: Every large line owner or large electricity distributor commits an offence, and is liable on summary conviction to a fine not exceeding $200,000 who intentionally obstructs, delays, hinders, or deceives, or causes to be obstructed, delayed, hindered, or deceived, an authorised person while the person is lawfully doing anything under section 57ZG
2: If the Commission has reason to believe that any large line owner or large electricity distributor is committing an offence under this section, the Commission has, for the purpose of carrying out its activities under subpart 4 section 98A, and sections 98A to 98G
57ZJ: Other offences
1: Every person commits an offence who—
a: refuses or knowingly fails to comply with any information disclosure requirements made under section 57T
b: knowingly makes a false declaration when supplying any statement, report, agreement, particulars, or information under section 57U
c: knowingly makes a false declaration when supplying any statement, report, agreement, particulars, or information for the purpose of an asset valuation under section 57Z
d: fails to publicly disclose a valuation report under section 57ZC(1)
2: Every person who commits an offence against subsection (1)(a) or subsection (1)(d)
3: Every person who commits an offence against subsection (1)(b) or subsection (1)(c) 1992 No 122 s 172
57ZK: Levy of electricity lines businesses
1: Every large electricity lines business (or prescribed class of large electricity lines businesses) must pay to the Minister of Energy the levy prescribed by regulations made under subsection (2)
2: The Governor-General may, by Order in Council made on the recommendation of the Minister of Energy, make regulations—
a: specifying the amount of levies, or method of calculating or ascertaining the amount of levies, on the basis that the estimated costs of performing the Commission's functions, powers, and duties under this Part, and of collecting the levy money, should be met fully out of levies:
b: including in levies, or providing for inclusion in levies of, any shortfall in recovering those actual costs:
c: refunding, or providing for refunds of, any over-recovery of those actual costs:
d: providing different levies for different classes of large electricity lines businesses:
e: specifying the financial year or part financial year to which those levies apply, and applying to that financial year or part and each subsequent financial year until revoked or replaced:
f: providing for the payment and collection of those levies:
g: for the first financial year to which the levy applies, including in the levy amount or method costs incurred from 13 December 2000 by the Commission in connection with preparing itself to perform, and performing, its functions, powers, and duties under this Part, irrespective of the fact that the regulations are made and come into effect after that date:
h: requiring payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:
i: exempting or providing for exemptions from, and providing for waivers of, the whole or any part of the levy for any case or class of cases.
3: The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.
4: Appeals in relation to determinations by Commission
1: Section 91 subsection (1)
1: Subject to sections 92 to 95 subsection (2)
a: there is a right of appeal to the High Court against any determination of the Commission under this Act other than—
i: a declaration under section 57F
ii: an authorisation under section 70 section 71
iii: an authorisation under section 57P
iv: a decision of the Commission whether or not to approve a valuation report under section 57ZB
b: there is a right of appeal to the High Court by way of case stated for the opinion of the Court on a question of law only against—
i: an authorisation under section 70 section 71
ii: an authorisation under section 57P
2: Section 93 appeal (other than an appeal under section 91(1)(b) |
DLM88186 | 2001 | Family Protection Amendment Act 2001 | 1: Title
1: This Act is the Family Protection Amendment Act 2001.
2: In this Act, the Family Protection Act 1955 the principal Act
2: Commencement
This Act comes into force on 1 February 2002.
3: Application
The amendments to the principal Act in sections 4 to 7
4: Interpretation
Section 2 subsection (1)
1: In this Act, unless the context otherwise requires,— administration administrator section 2(1) of the Administration Act 1969 application child of a de facto relationship child of a marriage Court section 3A de facto partner section 2 of the Property (Relationships) Act 1976 de facto relationship section 2 of the Property (Relationships) Act 1976 stepchild
a: who is not a child of the deceased, but is a child of—
i: the deceased's husband or wife; or
ii: a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death and who the Court can make an order under this Act in favour of; and
b: who was living at the date of the marriage of the husband or wife to the deceased or, as the case requires, when that de facto partner and the deceased started living in the de facto relationship.
5: Persons entitled to claim under Act
1: Section 3(1) paragraph (a)
aa: a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death: .
2: Section 3(1) paragraph (e)
e: the parents of the deceased, though a parent of the deceased may not make a claim under this Act unless—
i: the parent was being maintained wholly or partly or was legally entitled to be maintained wholly or partly by the deceased immediately before his or her death; or
ii: at the date of the claim, no wife or husband of the deceased, and no de facto partner of the deceased who was living in a de facto relationship with the deceased at the date of his or her death and who the Court can make an order under this Act in favour of, and no child of a marriage or child of a de facto relationship of the deceased, is living.
6: Claims against estate of deceased person for maintenance
1: Section 4 subsection (1)
1: If any person (referred to in this Act as the deceased
1A: Subsection (1) Administration Act 1969 section 4A
2: Section 4(3) paragraph (a)
a: the person is—
i: the wife or husband of the deceased, or a de facto partner of the deceased who was living in a de facto relationship with the deceased at the date of his or her death; or
ii: a child of a marriage or a child of a de facto relationship of the deceased, or a child of a marriage or a child of a de facto relationship of any such child; or .
7: New
section 4A The principal Act is amended by inserting, after section 4
4A: Restrictions on orders in favour of certain de facto partners
1: This section applies to a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death if the de facto relationship is a relationship of short duration as defined in section 2 of the Property (Relationships) Act 1976
2: The Court cannot make an order under this Act in favour of a de facto partner to whom this section applies unless—
a: the Court is satisfied—
i: that there is a child of the de facto relationship; or
ii: that the de facto partner has made a substantial contribution to the de facto relationship; and
b: the Court is satisfied that failure to make the order would result in serious injustice to the de facto partner.
3: In subsection (2) child of the de facto relationship contribution section 2 of the Property (Relationships) Act 1976
8: Consequential repeal
The Status of Children Act 1969 sections 2(1) 3(1)(e) 4(3)(a) |
DLM124960 | 2001 | Telecommunications Act 2001 | 1: Title
This Act is the Telecommunications Act 2001.
1: Preliminary
1: General
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Purpose
1: The main purpose of this Act is to regulate the supply of telecommunications services.
2: To avoid doubt, nothing in subsection (1) or in any other provision of this Act limits the Resource Management Act 1991
4: Overview
In this Act,—
a: provisions concerning the functions of the Commission under this Act and the performance of those functions by members of the Commission (in particular, the Telecommunications Commissioner) are set out in subpart 2
b: telecommunications services that are regulated are contained in Schedule 1 Part 2 Part 3
c: supplementary provisions concerning the detail of those regulated telecommunications services may be—
i: prescribed by regulations ( section 69
ii: provided in telecommunications access codes ( Schedule 2 prepared by the Commission on its own initiative or
d: provisions concerning determinations by the Commission in respect of those regulated telecommunications services are set out in subparts 2 to 5
e: provisions about altering regulated telecommunications services are set out in subpart 6 Schedules 3 3A
ea: provisions concerning the structural separation of Telecom are set out in Part 2A
eb:
f: provisions about the supply of certain telecommunications services under TSO instruments, the enforcement of those instruments, and contributions payable by certain telecommunications service providers to the suppliers of those telecommunications services are set out in Part 3
g: provisions from Parts 1 1A Part 4
i: network operators and connection to, and misuse of, a network ( subpart 1
ii: maintenance of networks ( subpart 2
gaaa: subpart 3 see also Schedule 3C
gaab: subpart 4
gaa: provisions about undertakings required to be given by providers of certain telecommunications services involving fibre optic communications networks constructed in whole or in part using Crown investment funding, restrictions on unbundling in respect of such service providers, and the preparation and disclosure of information are set out in Part 4AA
ga: enforcement provisions are set out in Part 4A
gb: provisions facilitating the establishment of 1 or more complaints systems for the purpose of addressing complaints by consumers against service providers are set out in Part 4B
h: miscellaneous provisions about the repeal of certain provisions of the 1987 Act (including consequential amendments and transitional provisions) are set out in Part 5 Schedule 4 Section 4(c)(ii) amended 22 December 2006 section 4(1) Telecommunications Amendment Act (No 2) 2006 Section 4(e) amended 22 December 2006 section 4(2) Telecommunications Amendment Act (No 2) 2006 Section 4(ea) substituted 30 November 2011 section 36 section 61 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 4(eb) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 4(gaaa) inserted 9 June 2017 section 4 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 4(gaab) inserted 3 May 2017 section 4 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 4(gaa) inserted 1 July 2011 section 88 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 4(ga) inserted 22 December 2006 section 4(4) Telecommunications Amendment Act (No 2) 2006 Section 4(gb) inserted 22 December 2006 section 4(4) Telecommunications Amendment Act (No 2) 2006
5: Interpretation
In this Act, unless the context otherwise requires,— 1987 Act Telecommunications Act 1987 access provider
a: means, in relation to a designated service or specified service, the person named or described in Part 2 Part 3
b: means, in relation to a service that is supplied under a registered undertaking, the person that provided the undertaking under Schedule 3A ; and
c: means, in relation to a fibre fixed line access service, the regulated fibre service provider who provides the service access seeker
a: means, in relation to a designated service or specified service, the person named or described in Part 2 Part 3
b: means, in relation to a service that is supplied under a registered undertaking, a service provider who seeks access to the service and who complies with any conditions set out in the registered undertaking for eligibility as an access seeker ; and
c: means, in section 155ZZD
d: means, in relation to a fibre fixed line access service, a person who seeks access to the service from the regulated fibre service provider annual CPI adjustment
a: the CPI for the quarter that ended most recently before the price adjustment; and
b: the CPI for the equivalent quarter in the preceding year applicable access principles subpart 1 Part 3 applicable conditions Part 2 Part 3 applicable final pricing principle subpart 1 applicable initial pricing principle subpart 1 appropriation period
a: a financial year; or
b: if the cost will be incurred under the authority of a multi-year appropriation or of a multi-year appropriation proposed in any Estimates, the financial years to which the multi-year appropriation applies approved code
a: means a telecommunications access code that has been approved by the Commission under clause 9 clause 10
b: includes any amendment to an approved code that has been approved under either of those clauses auditor's report section 83(b) broadcasting the same meaning as in section 2(1) Commission section 8 Commission 111 contact code section 238 Commission code
a: a Commission 111 contact code:
b: a Commission retail service quality code Commission retail service quality code Commission RSQ code Part 7 Commission’s Internet site computer record section 116(2) copper fixed line access services subpart 1
a: Chorus’s unbundled bitstream access:
b: Chorus’s unbundled copper low frequency service CPI means the Consumers Price Index (all groups) published by Statistics New Zealand or, if that index ceases to be published, any measure certified by the Government Statistician as being equivalent to that index deemed TSO instrument section 71 designated access service subpart 1 designated multinetwork service subpart 2 designated service document section 69XQ section 2(1) draft code
a: means a draft telecommunications access code prepared by the Forum under clause 1
b: includes a proposed amendment to, or proposed revocation of, an approved code eligible person
a: registered with the Commission for the purpose of voting on a draft code under clause 4
b: a member of the Forum end-user Estimates
a: Estimates as defined in section 2(1)
b: Supplementary Estimates as defined in section 2(1) existing lines
a: means any lines constructed by Telecom or any of its former subsidiaries before 1 April 1989; and
b: includes any lines that were wholly or partly in existence, or for which work on the construction, erection, or laying commenced, before 1 April 1989 existing residential line
a: means a Telecom residential line (other than a party line or a second line) that was an active connection on 20 December 2001; and
b: to avoid doubt, includes any such line that has been replaced or altered since 20 December 2001 existing works
a: means any works relating to the provision of telecommunications under the Post Office Act 1959 but
b:
c: does not include any works that, after that date, have been altered or moved or added to in a way that substantially alters their character or location, as the case may be ; and
d: in subpart 4 section 155ZS fibre fixed line access service
a: means a telecommunications service that enables access to, and interconnection with, a regulated fibre service provider’s fibre network; but
b: does not include the following:
i: a telecommunications service provided by a regulated fibre service provider ( F section 69U
ii: a telecommunications service provided, in any part other than a part located within an end-user’s premises or building, over a copper line:
iii: a telecommunications service used exclusively in connection with a service described in paragraph (ii) fibre handover point fibre network fibre-to-the-premises access network section 156AB financial year fixed PDN
a: means a PDN, or that part of a PDN, that connects an end-user's building (or, in the case of commercial buildings, the building distribution frames) to a data switch or equivalent facility; and
b: includes the data switch or equivalent facility and that part of the overall telecommunications link within the building that connects to the end-user's equipment fixed PSTN
a: means a PSTN, or that part of a PSTN, that connects an end-user's building to the local switches or equivalent facilities; and
b: includes those local switches or equivalent facilities fixed radio station Forum clause 4 implementation date
a: 1 January 2020; and
b: any date specified by the Minister in accordance with clause 9 industry retail service quality code industry RSQ code liability allocation determination section 87(1)(a) liable person line
a: means a wire or a conductor of any other kind (including a fibre optic cable) used or intended to be used for the transmission or reception of signs, signals, impulses, writing, images, sounds, instruction, information, or intelligence of any nature by means of any electromagnetic system; and
b: includes—
i: any pole, insulator, casing, fixture, tunnel, or other equipment or material used or intended to be used for supporting, enclosing, surrounding, or protecting any of those wires or conductors; and
ii: any part of a line local authority Local Government Act 2002 Minister Ministry multi-year appropriation see section 10 net cost
a: in relation to an instrument that is declared to be a TSO instrument under section 70
b: in relation to a deemed TSO instrument that requires the supply of a service to end-users, means the unavoidable net incremental cost to an efficient service provider of providing the service required by the TSO instrument to all end-users connected to existing residential lines; and
c: in relation to a deemed TSO instrument that requires the supply of a wholesale service that is an input to a service supplied to end-users, means the unavoidable net incremental cost to an efficient service provider of providing the service required by the TSO instrument to another service provider for the purpose of making a retail service available to all end-users connected to existing residential lines net revenue network network operator
a: section 105
b: section 2A party parties
a: for a determination made under section 27
b: for a standard terms determination made under section 30M section 39 Schedule 2
c: for a registered undertaking under Schedule 3A PDN public data network price subpart 6
a: valuable consideration in any form, whether direct or indirect; and
b: any consideration that in effect relates to the acquisition of goods or services or the acquisition or disposition of any interest in land, even though it ostensibly relates to any other matter or thing proposed addition clause 8(1)(b) proposed alteration clause 1(1) proposed omission clause 8(1)(a) PSTN public switched telephone network PTN public telecommunications network
a: means a network used, or intended to be used, in whole or in part, by the public for the purpose of telecommunication:
b: includes—
i: a PSTN:
ii: a PDN public notice section 6 qualified auditor qualified revenue and excluding any amount under section 85A
a: telecommunications services by means of its PTN:
b: telecommunications services by means that rely primarily on the existence of its PTN or any other PTN radio frequency registered undertaking clause 1 regulated fibre service provider section 226
a: information disclosure regulation:
b: price-quality regulation retail service quality
a: customer service and fault service levels:
b: installation issues:
c: contract issues:
d: product disclosure:
e: billing:
f: the switching process and related information:
g: service performance, speed, and availability retail service quality code road
a: a street and any other place to which the public have access, whether as of right or not; and
b: land that is vested in a local authority for the purpose of a road as shown on a deposited survey plan; and
c: all bridges, culverts, ferries, and fords that form part of any road, street, or any other place referred to in paragraph (a) or paragraph (b) service provider , except in subpart 3 Part 4AA Spark
a: means Spark New Zealand Limited (the company previously known, before 8 August 2014, as Telecom); and
b: includes any of its subsidiaries specified amount section 71A specified fibre area section 69AB specified point of interconnection section 231 specified service Part 3 subsidiary sections 5 6 Telecom
a: means Telecom Corporation of New Zealand Limited; and
b: includes any of its subsidiaries telecommunication telecommunication link telecommunications access code section 7(1) Telecommunications Commissioner section 9(3) telecommunications service telephone device TSO telecommunications service obligations TSO charges section 94L(1) TSO cost allocation determination sections 87 to 91 TSO cost calculation determination section 94J(1)(a) TSO instrument telecommunications service obligation instrument
a: an instrument that is declared to be a TSO instrument under section 70
b: a deemed TSO instrument TSO provider telecommunications service obligation provider UFB initiative
a: means the competitive tender programme, known as the Ultra-fast Broadband Initiative, to develop fibre-to-the-premises broadband networks connecting 75% of New Zealand households, with the support of $1.5 billion of Crown investment funding; and
b: includes—
i: the extension to that programme known as UFB 2, to develop fibre-to-the-premises networks connecting at least 80% of New Zealand households (which, to avoid doubt, includes the extension to UFB 2 known as UFB 2+); and
ii: any other extension to the programme wireless works working day
a: a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
b: the day observed in the appropriate area as the anniversary of the province of which the area forms part; and
c: a day in the period commencing with 25 December in any year and ending with 2 January in the following year; and
d: if 1 January in any year falls on a Friday, the following Monday; and
e: if 1 January in any year falls on a Saturday or a Sunday, the following Monday and Tuesday; and
f: if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday works
a: a line and any instrument, furniture, plant, office, building, machinery, engine, excavation, or work, of whatever description, used in relation to, or in any way connected with, a line; and
b: a fixed radio station. 1987 No 116 s 2(1), (1A) Section 5 access provider substituted 22 December 2006 section 5(1) Telecommunications Amendment Act (No 2) 2006 Section 5 access provider amended 13 November 2018 section 4(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access provider inserted 13 November 2018 section 4(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access seeker substituted 22 December 2006 section 5(2) Telecommunications Amendment Act (No 2) 2006 Section 5 access seeker amended 13 November 2018 section 4(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access seeker inserted 13 November 2018 section 4(5) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access seeker inserted 13 November 2018 section 4(5) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 annual CPI adjustment inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 appropriation period inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 chief executive repealed 13 November 2018 section 4(8) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission 111 contact code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission retail service quality code Commission RSQ code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission’s Internet site inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 5 constitution of Telecom repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 copper fixed line access services inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 CPI replaced 1 September 2022 section 107(1) Data and Statistics Act 2022 Section 5 document inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Estimates inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 existing residential line inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 existing works substituted 17 May 2005 section 3(1) Telecommunications Amendment Act 2005 Section 5 existing works amended 13 November 2018 section 39(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 existing works repealed 13 November 2018 section 39(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 existing works amended 3 May 2017 section 5(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 5 existing works inserted 3 May 2017 section 5(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 5 fibre fixed line access service inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 fibre handover point inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 fibre network inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 fibre-to-the-premises access network inserted 1 July 2011 section 88 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 financial year substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 implementation date inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 industry retail service quality code industry RSQ code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 KSO repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 liability allocation determination inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 liable person substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 liable person's TSO-qualified revenue repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 local authority substituted 1 July 2003 section 262 Local Government Act 2002 Section 5 local loop network repealed 22 December 2006 section 5(6) Telecommunications Amendment Act (No 2) 2006 Section 5 Ministry inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 multi-year appropriation inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 net cost substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 net cost substituted 30 November 2011 section 36 section 52(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 net cost added 30 November 2011 section 36 section 52(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 net revenue inserted 30 November 2011 section 36 section 52(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 network operator amended 30 November 2011 section 36 section 63(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 original KSO repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 party parties substituted 22 December 2006 section 5(7) Telecommunications Amendment Act (No 2) 2006 Section 5 party parties amended 13 November 2018 section 39(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 price substituted 30 November 2011 section 36 section 62 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 PTN public telecommunications network inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 qualified revenue inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 qualified revenue amended 13 November 2018 section 4(6) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 registered undertaking inserted 22 December 2006 section 5(8) Telecommunications Amendment Act (No 2) 2006 Section 5 regulated fibre service provider inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 retail service quality inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 retail service quality code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 service provider amended 1 July 2011 section 88 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 Spark inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 specified amount amended 22 December 2006 section 5(9) Telecommunications Amendment Act (No 2) 2006 Section 5 specified fibre area inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 specified point of interconnection inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 telecommunication replaced 13 November 2018 section 4(7) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 TSO charges inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSO cost calculation determination substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSO instrument telecommunications service obligation instrument substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSO provider telecommunications service obligation provider inserted 22 December 2006 section 5(11) Telecommunications Amendment Act (No 2) 2006 Section 5 TSO provider's TSO-qualified revenue repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSP telecommunications service provider repealed 22 December 2006 section 5(11) Telecommunications Amendment Act (No 2) 2006 Section 5 UFB initiative inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 wireless works inserted 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 working day replaced 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 5 working day replaced 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 Section 5 working day inserted 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013
6: Public notice
1: If, under this Act, the Commission is required to give public notice of a matter, the Commission must—
a: notify the matter in the Gazette
b: at all reasonable times, ensure that the full text of the matter is available on the Commission’s Internet site
2: A notification of a matter for the purpose of subsection (1)(a) must include—
a: the text of the matter; or
b: a summary of the text and a description of where the full text may be viewed on the Internet (for example, an Internet link).
3: If a provision of this Act refers to the date on which public notice of a matter is given, the relevant date is the date of its notification in the Gazette
4: Despite subsections (1) and (2), nothing in this Act requires the Commission to include in a public notice any information that would, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the person who supplied, or who is the subject of, the information. Section 6 replaced 13 November 2018 section 5 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 6(1)(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021
7: Telecommunications access codes
1: In this Act, telecommunications access code
a: designated services or specified services:
b: services supplied under a registered undertaking.
2: Schedule 2 Section 7(1) substituted 22 December 2006 section 6 Telecommunications Amendment Act (No 2) 2006
7A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 7A inserted 3 May 2017 section 6 Telecommunications (Property Access and Other Matters) Amendment Act 2017
8: Act binds the Crown
This Act binds the Crown.
2: Commerce Commission
Telecommunications Commissioner
9: Appointment of Telecommunications Commissioner
1: There must be a Telecommunications Commissioner.
2: The Telecommunications Commissioner is a member of the Commission as provided in section 9(3)
3: Subject to subsection (4), the Telecommunications Commissioner must be appointed by the Governor-General on the recommendation of the Minister.
3A: Subsection (3) applies despite section 28(1)(b)
4: No person may be recommended for appointment as the Telecommunications Commissioner unless, in the opinion of the Minister, that person is qualified for appointment, having regard to the functions and powers of the Commission, whether under this Act or any other enactment.
5: For the purposes of subsection (4), a person is qualified for appointment by virtue of that person's knowledge of, or experience in, the telecommunications industry or any other industry, commerce, economics, law, accountancy, public administration, or consumer affairs.
6: Subsections (4) and (5) do not limit section 29 Section 9(2) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 9(3A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 9(6) substituted 25 January 2005 section 200 Crown Entities Act 2004
9A: Functions of Commission in relation to sector monitoring and information dissemination
1: In addition to the other functions conferred on the Commission by this Act, the Commission—
a: must monitor competition in telecommunications markets and the performance and development of telecommunications markets; and
b: may conduct inquiries, reviews, and studies (including international benchmarking) into any matter relating to the telecommunications industry or the long-term benefit of end-users of telecommunications services within New Zealand; and
c: must monitor compliance with the Commission 111 contact code; and
d: must make available reports, summaries, and information about the things referred to in paragraphs (a) to (c); and
e: must monitor retail service quality in relation to telecommunications services; and
f: must make available reports, summaries, and information about retail service quality in a way that informs consumer choice.
2: The functions in subsection (1)(d) and (f) do not require the Commission to release all documents that the Commission produces or acquires under this section or section 10A Section 9A replaced 13 November 2018 section 25 Telecommunications (New Regulatory Framework) Amendment Act 2018
10: Performance of Commission's functions
1: Subject to subsection (2) and sections 15 17
a: the Telecommunications Commissioner and no fewer than 2 other members of the Commission must—
i: make every determination in respect of a designated multinetwork service under section 39
ii: make every pricing review determination under section 51
iii: make every liability allocation determination under section 87
iv: make every TSO cost calculation determination under section 94J
v: make every determination in respect of fibre fixed line access services under Part 6
ab: the determinations referred to in paragraph (a) must, if the Telecommunications Commissioner and the other members of the Commission are not unanimous in their view, be made in accordance with the majority view; and
b: the Telecommunications Commissioner must report to the Minister about every proposed alteration to Schedule 1 sections 66 67 clause 4
i: the recommendation included in the final report to the Minister must be supported by the majority of the Telecommunications Commissioner and the other members of the Commission; and
ii: the final report must include the majority view and any dissenting views; and
c: every function of the Commission under this Act (other than any of the functions set out in paragraphs (a) and (b)) must be performed—
i: by the Telecommunications Commissioner alone; or
ii: if the Telecommunications Commissioner requests the chairperson or more chairperson and those other
2: If there is no Telecommunications Commissioner or if the Telecommunications Commissioner is for any reason unable to perform the functions of the Commission that would otherwise have been performed by him or her under this Act,—
a: those functions must be performed by the chairperson
b: every reference in this Act to the Telecommunications Commissioner must, unless the context otherwise requires, be read as a reference to the chairperson
3: The chairperson
4: The quorum requirements in section 15(4) section 10(1)(c)(i) Section 10(1)(a) substituted 1 July 2011 section 5 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 10(1)(a)(v) inserted 13 November 2018 section 17(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 10(1)(ab) inserted 1 July 2011 section 5 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 10(1)(b) substituted 1 July 2011 section 5 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 10(1)(c)(ii) amended 13 November 2018 section 17(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 10(1)(c)(ii) amended 13 November 2018 section 17(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 10(1)(c)(ii) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(2)(a) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(2)(b) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(3) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(4) added 25 January 2005 section 200 Crown Entities Act 2004
10A: Power to require supply of information to support functions of monitoring and reporting on retail service quality
For the purpose of carrying out its functions under section 9A(1)(e) and (f)
a: prepare and produce forecasts, forward plans, historical information, or other information; and
b: apply any methodology or format specified by the Commission in the preparation of forecasts, forward plans, historical information, or other information. Section 10A inserted 13 November 2018 section 26 Telecommunications (New Regulatory Framework) Amendment Act 2018 Levy
11: Levy
1: Every service provider, or class of service providers, specified in regulations made under subsection (3) must pay to the Minister, in each appropriation period appropriation period
a: the performance of the Commission's functions and duties under this Act; and
b: the exercise of the Commission's powers under this Act.
2: Subsection (1) applies irrespective of the fact that the regulations are made and come into effect after the date on which the appropriation period appropriation period
3: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: specifying the amounts of levies payable under this section:
b: providing for the method by which those levies will be calculated:
c: specifying the criteria and other requirements by and against which those levies will be set or reset:
d: specifying the appropriation period appropriation period
e: providing for the payment and collection of those levies:
f: exempting any service provider or class of service providers from paying levies under this section:
g: providing for waivers or refunds of the whole or any part of any levy paid by any service provider or class of service providers under this section.
4: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 11(1) amended 13 November 2018 section 18 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 11(2) amended 13 November 2018 section 18 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 11(3)(d) amended 13 November 2018 section 18 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 11(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
12: Levy for appropriation period beginning 1 July 2018
1:
2:
3:
3A: Every service provider, or class of service providers, specified in regulations made under subsection (4) must pay to the Minister, for the appropriation period beginning on 1 July 2018, a levy of an amount stated in, or calculated or set or reset in accordance with, those regulations for, or in connection with,—
a: the preparation of the performance of, and the performance of, the Commission’s functions and duties under Parts 2AA 6 7
b: the preparation of the exercise of, and the exercise of, the Commission’s powers under Parts 2AA 6 7
3B: Subsection (3A) applies irrespective of whether that subsection, and the regulations made under subsection (4), come into effect before, on, or after 1 July 2018.
4: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: specifying the amount of levy payable under this section:
b: providing for the method by which the levy will be calculated:
c: specifying the criteria and other requirements by and against which the levy will be set or reset:
d: specifying the first appropriation period appropriation period
e: providing for the payment and collection of the levy:
f: exempting any service provider or class of service providers from paying the levy under this section:
g: providing for waivers or refunds of the whole or any part of any levy paid by any service provider or class of service providers under this section.
5: The Minister must not recommend that regulations be made under this section unless the Minister is satisfied that the levy will not require a service provider, or a class of service providers, to pay a levy in respect of the same period under both this section and section 11
a: the performance of the Commission’s functions and duties under Parts 2AA 6 7
b: the exercise of the Commission’s powers under Parts 2AA 6 7
6: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 12 heading replaced 13 November 2018 section 19(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(1) repealed 13 November 2018 section 19(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(2) repealed 13 November 2018 section 19(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(3) repealed 13 November 2018 section 19(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(3A) inserted 13 November 2018 section 19(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(3B) inserted 13 November 2018 section 19(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(4)(d) amended 13 November 2018 section 19(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(5) inserted 13 November 2018 section 19(5) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
13: Minister must consult before making recommendation under section 11(3) or section 12(4)
The Minister must not make any recommendation under section 11(3) section 12(4)
14: Late payment of levy
1: If any service provider liable to pay the levy fails to pay the whole amount of that levy by the date specified in regulations made under section 11(3) section 12(4)
2: Interest will be calculated in monthly instalments for each month, or part of each month, that the payment is due.
3: The amount of any unpaid levy or interest is recoverable in any court of competent jurisdiction as a debt due to the Crown. Application of Commerce Act 1986
15: Application of Commerce Act 1986
and Crown Entities Act 2004
(1): The following provisions of the Commerce Act 1986
a:
b: section 13
c:
d: section 15 (except as provided in section 10(4)
e:
f: section 98
g: subject to section 16 sections 98A and 98G
h: section 99
ha: sections 99B(a) 99C to 99P
i: references in those sections to competition law functions, or functions in relation to competition law, were references to functions relating to the regulation of telecommunications; and
ii: references in those sections to the Minister were references to the Minister responsible for telecommunications:
i: section 100
j: section 100A
k: sections 101 102
l: section 103
m: section 104
n:
o: section 106
p: section 106A
q: section 109
2: The following provisions of the Commerce Act 1986 Part 6
a: section 77
b: sections 79A 79B
c: sections 88 88A 90
d: sections 93 to 97
e: Schedule 5
3: Sections 88 88A section 156MD
4: For the purposes of subsection (1)(l), the necessary modifications referred to in that subsection include (without limitation) treating a notice under any of sections 10A 187(1)(c) 193 221 section 103(1)(a) Section 15 heading amended 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)(a) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)(c) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)(d) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)(e) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)(g) amended 1 October 2012 section 339(2) Search and Surveillance Act 2012 Section 15(1)(ha) inserted 24 October 2012 section 4 Telecommunications (International Co-operation) Amendment Act 2012 Section 15(1)(n) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(2) inserted 13 November 2018 section 20 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 15(3) inserted 13 November 2018 section 20 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 15(4) inserted 13 November 2018 section 20 Telecommunications (New Regulatory Framework) Amendment Act 2018
16: Application of section 98A of Commerce Act 1986
A search warrant may be issued under section 98A(2)
a: ascertaining whether a person has done any of the following things:
i: committed an offence against section 46(1)(b) or (c) section 82(1)
ii: contravened section 103 Commerce Act 1986
b: obtaining information and documents that have been requested by the Commission under section 82(b) 83(1)(a) section 98 Section 16(b) amended 1 July 2011 section 6 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
17: Telecommunications Commissioner to consent to delegation of some functions and powers of Commission
If there is a Telecommunications Commissioner, the Telecommunications Commissioner's consent must be first obtained for the delegation, under section 73 Section 17 heading substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 17 amended 25 January 2005 section 200 Crown Entities Act 2004
2: Designated services and specified services
1: Preliminary
18: Purpose
1: The purpose of this Part and Schedules 1 to 3
2: In determining whether or not, or the extent to which, any act or omission will result, or will be likely to result, in competition in telecommunications markets for the long-term benefit of end-users of telecommunications services within New Zealand, the efficiencies that will result, or will be likely to result, from that act or omission must be considered.
2A: To avoid doubt, in determining whether or not, or the extent to which, competition in telecommunications markets for the long-term benefit of end-users of telecommunications services within New Zealand is promoted, consideration must be given to the incentives to innovate that exist for, and the risks faced by, investors in new telecommunications services that involve significant capital investment and that offer capabilities not available from established services.
3: Except as otherwise expressly provided, nothing in this Act limits the application of this section.
4: Subsection (3) is for the avoidance of doubt. Section 18(2A) inserted 1 July 2011 section 7 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
19: Commission and Minister must consider purpose set out in section 18 and additional matters
If the Commission or the Minister (as the case may be) is required under this Part , Part 2AA Schedules 1 3 3A
a: consider the purpose set out in section 18
b: if applicable, consider the additional matters set out in Schedule 1 section 18
c: make the recommendation, determination, or decision that the Commission section 18 Section 19 amended on 13 November 2018 section 6 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 19 amended 22 December 2006 section 8(1) Telecommunications Amendment Act (No 2) 2006 Section 19(c) amended 22 December 2006 section 8(2) Telecommunications Amendment Act (No 2) 2006
19A: Commission to have regard to economic policies of Government
1: In the exercise of its powers under Part 6 Schedule 3
2: The Minister must, as soon as practicable after transmitting a statement of economic policy of the Government to the Commission under subsection (1),—
a: arrange for a copy of that statement to be published in the Gazette
b: present a copy of that statement to the House of Representatives.
3: To avoid doubt, a statement of economic policy of the Government transmitted to the Commission under this section is not a direction for the purposes of Part 3 Section 19A inserted 22 December 2006 section 9 Telecommunications Amendment Act (No 2) 2006 Section 19A(1) amended 13 November 2018 section 21 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Determinations for designated access services and specified services
Application
20: Application
1: An access seeker or an access provider of a designated access service or specified service may apply to the Commission for a determination of all or some of the terms on which the service must be supplied during the period of time specified in the application.
2: For the purposes of subsection (1), the terms on which the service must be supplied—
a: may, in the case of a designated access service, include the price payable by the access seeker for the service; and
b: must, in the case of a specified service, exclude the price payable by the access seeker for the service.
21: When application must be treated as application for pricing review determination
An application by an access seeker or an access provider of a designated access service for a determination that relates to the price payable by the access seeker for the service must be treated as an application for a pricing review determination under section 42
22: When application may not be made
1: Despite section 20
a:
b:
c: that person has not made reasonable attempts to negotiate the terms of supply of the service with the person who would otherwise be a party to the determination; or
ca: the standard terms development process for the service is proceeding or a standard terms determination for the service is in force; or
d: the applicable conditions in relation to the service (if any) have not been met.
2:
3: The Commission may investigate whether subsection (1)(d) applies either at the time—
a: it receives an application made under section 20
b: it prepares a determination under section 27
4: However, if the Commission is satisfied, at any time, that the applicable conditions in relation to the service have not been met, the Commission must discontinue—
a: all of its investigation; or
b: as the case may be, that part of its investigation that relates to the market in which those conditions have not been met. Section 22(1)(a) repealed 22 December 2006 section 10(1) Telecommunications Amendment Act (No 2) 2006 Section 22(1)(b) repealed 22 December 2006 section 10(1) Telecommunications Amendment Act (No 2) 2006 Section 22(1)(ca) inserted 22 December 2006 section 10(2) Telecommunications Amendment Act (No 2) 2006 Section 22(2) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 22(3) added 22 December 2006 section 10(3) Telecommunications Amendment Act (No 2) 2006 Section 22(4) added 22 December 2006 section 10(3) Telecommunications Amendment Act (No 2) 2006
22A: Effect of application on existing agreement for supply of designated access service or specified service
1: This section applies if an access seeker of a designated access service or specified service applies for a determination under section 27
2: The access provider must not, as a direct or indirect result of the access seeker making the application for the determination, act in a way that is, or is likely to be, prejudicial to the interests of the access seeker.
3: The access provider may discontinue the supply of the service under the agreement only if—
a: a determination is made under section 27
b: the access provider begins to supply the service on the terms specified in the determination.
4: Subsection (3) does not apply if, before the date on which the determination is made, the agreement—
a: has already expired; or
b: has been terminated for a reason that is unrelated to the making of the application.
5: If there is any inconsistency between the determination and the agreement, the determination prevails. Section 22A inserted 22 December 2006 section 11 Telecommunications Amendment Act (No 2) 2006
23: Requirements for application
An application made under section 20
a: be in writing; and
b: be given in the prescribed manner, if any; and
c: contain the prescribed information, if any; and
d: be accompanied by the prescribed fee, if any. Notification
24: Commission must notify parties
On receiving an application made in accordance with section 23
a: notify the parties to the determination in writing that the application has been received; and
b: provide a copy of the application to the other party to the determination; and
c: request the parties to the determination to comment on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission. Investigation
25: Commission must decide whether to investigate
1: The Commission must make reasonable efforts to do the following things not later than 10 working days after the date by which the parties may comment on the application:
a: decide whether or not to investigate the matter:
b: give written notice of its decision to the parties:
c: give public notice of its decision:
d: request the parties to the determination to make submissions on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission.
2: Subsection (1)(d) applies only if the Commission has decided under subsection (1)(a) to investigate the matter. Consultation
26: Consultation or conferences
If the Commission considers that persons, other than the parties to the determination, have a material interest in the matter to be investigated, the Commission must, before preparing a determination under section 27 Determination
27: Preparation of determination
1: After investigating the matter, the Commission must—
a: prepare a determination; and
b: give a copy of the determination to the parties to the determination.
c:
2: A determination under this section is secondary legislation ( see Part 3
3: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. 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 • give public notice in accordance with section 6 • comply with subsection (3) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 27(1)(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 27(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 27(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
28: When determination must be prepared
1: The Commission must make reasonable efforts to prepare a determination under section 27
a: if the determination does not include the price payable for the supply of the service, not later than 40 working days after it gave written notice under section 25(1)(b)
b: if the determination includes the price payable for the supply of the service, not later than 50 working days after it gave written notice under section 25(1)(b)
2: If, despite making reasonable efforts, the Commission is unable to do the things set out in subsection (1) within the relevant time limit, the Commission must give to the parties concerned written reasons for not meeting the relevant time limit.
29: Requirements for determination
A determination must, in the opinion of the Commission,—
a: be made in accordance with—
i: the applicable access principles and any limits on those applicable access principles; and
ii: any regulations made in respect of the applicable access principles and any limits on those applicable access principles; and
b: comply with any relevant approved codes; and
c: in the case of a determination regarding a designated access service, be made in accordance with—
i: the applicable initial pricing principle (as affected, if at all, by clause 2 clause 3
ii: any regulations that specify how the applicable initial pricing principle must be applied.
30: Matters to be included in determination
1: A determination must include—
a: the terms on which the service must be supplied; and
b:
c: the terms and conditions (if any) on which the determination is made; and
d: the actions (if any) that a party to the determination must do or refrain from doing; and
e: the expiry date of the determination.
2: To avoid doubt, a determination may also include, without limitation, terms concerning any or all of the following matters:
a: dispute resolution procedures:
b: the consequences of a breach of the determination (including provision for set-off or withholding rights, or liquidated damages):
c: suspension and termination of the service:
d: procedures for, or restrictions on, assignment of the service. Section 30(1)(b) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30(2) added 22 December 2006 section 12 Telecommunications Amendment Act (No 2) 2006
2A: Standard terms determinations for designated access services and specified services
Subpart 2A inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Preliminary Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30A: Overview of subpart
1: This subpart enables the Commission to make, as an alternative to a determination made under section 27
2: Accordingly, this subpart—
a: provides a process for the development of standard terms for the supply of the service ( sections 30C to 30J
b: provides for the Commission to make, and review, a standard terms determination ( sections 30K to 30R
c: specifies how a standard terms determination is to apply ( section 30S
d: clarifies the interface between a determination made under section 27 section 30T
e:
3: This section is intended only as a guide to the general scheme and effect of this subpart. Section 30A inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30A(2)(e) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30B: Interpretation
In this subpart,— change in circumstances regulated terms Section 30B inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Standard terms development process Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30C: When standard terms development process may be initiated
1: The Commission may, on its own initiative, initiate the standard terms development process for a designated access service or specified service.
2: However, the Commission may not initiate that standard terms development process if the applicable conditions in relation to the service (if any) have not been met.
3: The Commission may investigate whether the applicable conditions in relation to the service have been met either—
a: before deciding to initiate the standard terms development process; or
b: at the time it prepares a standard terms determination under section 30M
4: However, if the Commission is satisfied, at any time, that the applicable conditions in relation to the service have not been met, the Commission must discontinue—
a: all of its investigation; or
b: as the case may be, that part of its investigation that relates to the market in which those conditions have not been met.
5: For the purposes of subsection (1), the Commission may, if it considers it appropriate in the circumstances, initiate a single combined standard terms development process for 2 or more designated access services or specified services. Section 30C inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30D: Commission must give public notice if Commission initiates standard terms development process
The Commission must give public notice that it has initiated the standard terms development process for a designated access service or specified service not later than 10 working days after initiating that process under section 30C Section 30D inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30E: Commission must conduct scoping workshop
1: The Commission must conduct 1 or more scoping workshops in relation to a designated access service or specified service.
2: The purpose of a scoping workshop is to provide the Commission with information to assist it in specifying—
a: a reasonable period of time within which an access provider must submit a standard terms proposal under section 30F
b: any additional requirements for that proposal under section 30F(2)
3: A scoping workshop must be—
a: open to all parties to the standard terms determination; and
b: conducted by an employee or agent of the Commission in a manner, and within the time, that the Commission thinks fit.
4: To avoid doubt, this section does not prevent the Commission from conducting a workshop in relation to any other matter, nor does it affect the matters that may be considered by the Commission in any other workshop. Section 30E inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Standard terms proposal Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30F: Call for standard terms proposal
1: After giving public notice under section 30D section 30E
a: give written notice to 1 or more access providers of the designated access service or specified service requiring them to submit to the Commission, by the date specified in the notice, a standard terms proposal that complies with section 30G
b: give public notice of that requirement.
2: The Commission may include in the written notice under subsection (1)(a) any additional requirements that it thinks fit to specify, having regard to any relevant matters (for example, the terms and conditions of any commercial agreement or regulated terms for any service in New Zealand or overseas).
3: An access provider of the designated access service or specified service to whom written notice is given under subsection (1)(a) must comply with the requirement or requirements contained in that notice.
4: The written notice under subsection (1)(a) must be accompanied by a copy of—
a: section 30G
b: any additional requirements that the Commission specifies under subsection (2). Section 30F inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30G: Requirements for standard terms proposal
1: A standard terms proposal must—
a: specify sufficient terms to allow, without the need for the access seeker to enter into an agreement with the access provider, the designated access service or specified service to be made available within the time frames specified under paragraph (c); and
b: provide an explanation of, and reasons for, those terms; and
c: state the time frames within which the access provider must make the service available to—
i: every person who is already an access seeker when the standard terms determination is made; and
ii: every person who becomes an access seeker after the standard terms determination is made; and
d: be consistent with the description of the service in Part 2 Part 3
e: be consistent with the applicable access principles and any limits on those applicable access principles; and
f: comply with any additional requirements that the Commission has specified under section 30F(2)
2: The terms referred to in subsection (1)(a)—
a: must include the price payable for the supply of the service if that price has been determined in accordance with the applicable initial pricing principle or the applicable final pricing principle in a previous determination made under section 27
b: must not include that price if that is not the case.
3: The Commission may refuse to consider a standard terms proposal that—
a: fails to comply with this section:
b: is submitted late. Section 30G inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30H: Failure to submit standard terms proposal
1: If an access provider of a designated access service or specified service fails to submit, in response to a notice under section 30F section 30G
a: give written notice to another access provider, or an access seeker of the service requesting that access provider or, as the case may be, that access seeker to submit to the Commission, by a further date specified in the notice, a standard terms proposal that complies with section 30G
b: prepare a draft standard terms determination under section 30K
2: The written notice under subsection (1)(a) must be accompanied by a copy of—
a: section 30G
b: any additional requirements that the Commission specifies under section 30F(2) Section 30H inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30I: Receipt of standard terms proposal
As soon as practicable after receiving a standard terms proposal that complies with section 30G
a: notify all parties to the determination in writing that the proposal has been received:
b: give public notice of the receipt of the proposal:
c: include in the public notice—
i: information about where a copy of the proposal may be viewed and obtained; and
ii: the closing date for submissions on the proposal. Section 30I inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30J: Requirement for submissions
A submission to the Commission on a standard terms proposal—
a: may be made about any matter to which the proposal relates; but
b: must set out the wording of any additional or alternative terms that are proposed to be included in the standard terms determination. Section 30J inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Draft standard terms determination Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30K: Draft standard terms determination
1: The Commission must make reasonable efforts to do the following things not later than 60 working days after the closing date for submissions on a standard terms proposal:
a: determine the terms on which the service must be supplied; and
b: prepare a draft standard terms determination containing those terms; and
c: provide a copy of the draft standard terms determination to all parties to the determination; and
d: give public notice of the draft standard terms determination; and
e: include in the public notice the closing date for submissions.
2: A draft standard terms determination for a designated access service must also include,—
a: if the price or prices payable for the service have been determined in accordance with the applicable final pricing principle in a determination made under section 51
i: that price or those prices; or
ii: an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or
b: if paragraph (a) does not apply, and the price or prices payable for the service have been determined in accordance with the applicable initial pricing principle in a determination made under section 27
i: that price or those prices; or
ii: an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or
iii: if the price or prices referred to in subparagraph (i) or (ii) are higher than the existing price charged by the relevant access provider to the majority of its access seekers for the service, that existing price; or
c: if neither paragraph (a) nor paragraph (b) applies, the price or prices determined by the Commission in accordance with the applicable initial pricing principle. Section 30K inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30L: Consultation or conferences
If the Commission considers that persons other than the parties to the determination have a material interest in a standard terms determination, the Commission must, before preparing the standard terms determination under section 30M Section 30L inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Standard terms determination Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30M: Standard terms determination
1: As soon as practicable after completing any consultation or conferences under section 30L section 30K(1)(e)
a: prepare a standard terms determination; and
b: provide a copy of the standard terms determination to all parties to the determination.
c:
2: A determination under this section is secondary legislation ( see Part 3
3: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. 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 • give public notice in accordance with section 6 • comply with subsection (3) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 30M inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30M(1)(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30M(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30M(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
30N: Commission's discretion to determine how standard terms determination is to be prepared
1: The Commission may, if it considers it appropriate in the circumstances, comply with section 30M(a)
a: a standard terms determination relating to 2 or more designated access services or specified services that contains—
i: terms of general application to all the services to which the standard terms determination relates; and
ii: a separate schedule for each of those services that includes terms of specific application to that service; or
b: a separate standard terms determination for each designated access service or specified service.
2: Instead of preparing a standard terms determination in each case, the Commission may also comply with section 30M(a) Section 30N inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30O: Matters to be included in standard terms determination: general
1: A standard terms determination must—
a: specify sufficient terms to allow, without the need for the access seeker to enter into an agreement with the access provider, the designated access service or specified service to be made available within the time frames specified under paragraph (b); and
b: state the time frames within which the access provider must make the service available to—
i: every person who is already an access seeker when the standard terms determination is made; and
ii: every person who becomes an access seeker after the standard terms determination is made; and
c:
d: specify the terms and conditions (if any) on which the standard terms determination is made; and
e: specify the actions (if any) that a party to the standard terms determination must take or refrain from taking.
2: To avoid doubt, a standard terms determination may also include, without limitation, terms concerning any or all of the following matters:
a: dispute resolution procedures:
b: the consequences of a breach of the determination (including provision for set-off or withholding rights, or liquidated damages):
c: suspension and termination of the service:
d: procedures for, or restrictions on, assignment of the service.
3: Section 30O inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30O(1)(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30O(3) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30P: Additional matters to be included in standard terms determination for designated access service
1: In addition to the matters set out in section 30O
a: if the price or prices payable for the service have been determined in accordance with the applicable final pricing principle in a determination made under section 51
i: that price or those prices; or
ii: an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or
b: if paragraph (a) does not apply, and the price or prices payable for the service have been determined in accordance with the applicable initial pricing principle in a determination made under section 27
i: that price or those prices; or
ii: an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or
iii: if the price or prices referred to in subparagraph (i) or (ii) are higher than the existing price charged by the relevant access provider to the majority of its access seekers for the service, that existing price; or
c: if neither paragraph (a) nor paragraph (b) applies, the price or prices determined by the Commission in accordance with the applicable initial pricing principle.
2: A standard terms determination for a designated access service may also include any other terms concerning the price for the service that the Commission considers relevant. Section 30P inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30Q: Standard terms determination not to include expiry date
A standard terms determination must not include an expiry date for the determination. Section 30Q inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30R: Review of standard terms determination
1: The Commission may, on its own initiative, commence a review, at any time, of all or any of the terms specified in a standard terms determination.
2: The Commission may replace a standard terms determination or vary, add, or delete any of its terms, if it considers it necessary to do so after conducting a review.
3: In exercising the power conferred by subsection (2), the Commission may specify how and when a replacement standard terms determination, or a variation, addition, or deletion of terms specified in the determination, takes effect in relation to—
a: the initial standard terms determination.
b:
4: The Commission may conduct a review in the manner, and within the time, that it thinks fit.
5: The Commission must—
a: consult all parties to the determination on the review; and
b: give public notice of the commencement of the review; and
c: include in the public notice under paragraph (b) the closing date for submissions; and
d: give public notice of the result of the review.
6: Any replacement standard terms determination, or a variation, addition, or deletion of terms 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 The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 30R inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30R(3)(b) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 30R(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Application of standard terms determination Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30S: Application of standard terms determination
1: If the Commission has made a standard terms determination for a designated access service or specified service,—
a: an access seeker of the service may request an access provider in writing to supply the service on the terms specified in that determination; and
b: the access provider must comply with the request.
2: However, subsection (1) does not apply if,—
a: after the date on which the standard terms determination for the service was made, the access seeker and the access provider entered into an agreement for the supply of the service; and
b: it is less than 18 months since the date on which that agreement came into force.
3:
4: Section 30S inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30S(3) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 30S(4) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30T: Effect of standard terms determination on determination made under section 27
1: This section applies if—
a: a determination for a designated access service or specified service is made under section 27
b: that determination is still in force at the time a standard terms determination is made for the service.
2: An access seeker of the service who is a party to the determination made under section 27
3: The access provider must comply with the request.
4: The determination made under section 27 Section 30T inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Residual terms determination Heading repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30U: Purpose of residual terms determination
Section 30U repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30V: Application for residual terms determination
Section 30V repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30W: When application may not be made
Section 30W repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30X: Requirements for application
Section 30X repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30Y: Commission must notify parties
Section 30Y repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30Z: Commission must decide whether to investigate
Section 30Z repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZA: Consultation or conferences
Section 30ZA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZB: Preparation of residual terms determination
Section 30ZB repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZC: Requirements for residual terms determination
Section 30ZC repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZD: Matters to be included in residual terms determination
Section 30ZD repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Determinations for designated multinetwork services
Commission may initiate process for designated multinetwork service determination on own initiative Heading inserted 22 December 2006 section 14 Telecommunications Amendment Act (No 2) 2006
31AA: Commission may initiate process for designated multinetwork service determination on own initiative
1: The Commission may, on its own initiative, initiate the process for a determination of—
a: the functions that must be performed by a system for delivering a designated multinetwork service and the standard to which those functions must be performed; and
b: the formula for how the cost of delivering the service must be apportioned between the access seeker and all access providers of the service.
2: The Commission may decide to initiate that process only if it is satisfied that there are reasonable grounds for doing so. Section 31AA inserted 22 December 2006 section 14 Telecommunications Amendment Act (No 2) 2006 Application
31: Application
An access seeker of a designated multinetwork service may apply to the Commission for a determination of—
a: the functions that must be performed by a system for delivering the service and the standard to which those functions must be performed; and
b: the formula for how the cost of delivering the service must be apportioned between the access seeker and all access providers of the service.
32: When application may not be made
Despite section 31
a: of any matters that an approved code already provides for; or
b: if the Commission has already made a determination in respect of the designated multinetwork service and the determination has not expired; or
c: if there is an agreement between the access seeker and all access providers for the supply of the service and the agreement provides for all of the matters set out in section 31
33: Requirements for application
An application under section 31
a: be in writing; and
b: be given in the prescribed manner, if any; and
c: contain the prescribed information, if any; and
d: be accompanied by the prescribed fee, if any. Notification
34: Commission must notify parties
On initiating the process for a designated multinetwork service determination under section 31AA section 33
a: notify all the parties to the determination in writing that it has initiated that process or received the application, as the case may be; and
b: for an application made in accordance with section 33
c: request all the parties to the determination to comment on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission. Section 34 substituted 22 December 2006 section 15 Telecommunications Amendment Act (No 2) 2006 Investigation
35: Commission must decide whether to investigate
The Commission must make reasonable efforts to do the following things not later than 10 working days after the date by which the parties may comment on the matter
a: decide whether or not to investigate the matter:
b: give written notice of its decision to all the parties to the determination:
c: give public notice of its decision. Section 35 amended 22 December 2006 section 16 Telecommunications Amendment Act (No 2) 2006 Draft determination
36: Draft determination
1: The Commission must make reasonable efforts to do the following things not later than 60 working days after it gave written notice under section 35(b)
a: prepare a draft determination; and
b: give a copy of the draft determination to all the parties to the determination; and
c: give public notice of the draft determination; and
d: include in the public notice—
i: the closing date for submissions, which must not be earlier than 20, and not later than 40, working days after the date of publication of the draft determination; and
ii: if a public hearing is to be held under section 38
2: If, despite making reasonable efforts, the Commission is unable to do all the things set out in subsection (1) within the time limit specified in that subsection, the Commission must give to the parties concerned written reasons for not meeting that time limit.
37: Matters to be included in draft determination
1: Subject to subsection (2), the draft determination must include—
a: a description of the functions that must be performed by a system for delivering the service and the standard to which those functions must be performed; and
b: the formula for how the cost of delivering the service must be apportioned between the parties to the determination and every person who becomes an access provider after the determination is made; and
c: the reasons for the determination; and
d: the terms and conditions on which the determination is proposed to be made; and
e: the actions (if any) that a party to the determination must do or refrain from doing; and
f: the proposed expiry date of the determination.
2: Subsection (1)(a) applies only to the extent that the matters referred to in that paragraph have not already been provided for in an approved code.
38: Consultation, conferences, or public hearing
The Commission may consult with interested parties, hold conferences, or, if it is satisfied that it is in the public interest to do so, hold a public hearing, in relation to a draft designated multinetwork service determination. Determination
39: Determination
1: As soon as practicable after completing any consultation, conferences, or any public hearing under section 38 section 36(1)(d)(i)
a: prepare a determination; and
b: give a copy of the determination to all the parties to the determination.
c:
2: A determination under this section is secondary legislation ( see Part 3
3: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. 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 • give public notice in accordance with section 6 • comply with subsection (3) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 39(1)(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 39(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 39(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
40: Matters to be included in determination
1: Subject to subsection (2), a designated multinetwork service determination must include—
a: the functions that must be performed by a system for delivering the service and the standard to which those functions must be performed; and
b: the formula for how the cost of delivering the service must be apportioned between the parties to the determination and every person who becomes an access provider after the determination is made; and
c: the requirement that all the parties to the determination provide the service by means of a system that is consistent with the functions and the standards set out in the determination; and
d: the requirement that any party to the determination make payments to an access provider of amounts calculated in accordance with the formula set out in the determination; and
e:
f: the terms and conditions (if any) on which the determination is made; and
g: the actions (if any) that a party to the determination must do or refrain from doing; and
h: the expiry date of the determination.
2: Subsection (1)(a) applies only to the extent that the matters referred to in that paragraph have not already been provided for in an approved code. Section 40(1)(e) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
41: Determinations not invalid for certain failures
1: If the Commission omits to do any of the things listed in subsection (2), that omission does not in any way affect the validity of the determination to which the omission relates.
2: The things referred to in subsection (1) are as follows:
a: to notify any party to a determination under section 34(a)
b: to provide a copy of an application for a determination to an access provider under section 34(b)
c: to give a copy of the draft determination to a party to the determination under section 36(1)(b)
d: to give a copy of the determination to a party under section 39(b)
4: Pricing review determinations for designated access services
Application
42: Application
1: If a determination is made under section 27 or section 30M
1A: However, subsection (1) does not apply in relation to a determination made under section 30M section 30P(1)(a)
2: A determination made under section 27 or section 30M
3: A party to a determination made under section 27 or section 30M
4: Subsections (2) and (3) are for the avoidance of doubt. Section 42(1) amended 22 December 2006 section 17(1) Telecommunications Amendment Act (No 2) 2006 Section 42(1A) inserted 22 December 2006 section 17(2) Telecommunications Amendment Act (No 2) 2006 Section 42(2) amended 22 December 2006 section 17(1) Telecommunications Amendment Act (No 2) 2006 Section 42(3) amended 22 December 2006 section 17(1) Telecommunications Amendment Act (No 2) 2006
43: Requirements for application
An application under section 42
a: be in writing; and
b: be given to the Commission not later than 25 working days after,—
i: for a determination made under section 27
ii: for a standard terms determination made under section 30M
c: be given in the prescribed manner, if any; and
d: contain the prescribed information, if any; and
e: be accompanied by the prescribed fee, if any. Section 43(b) substituted 22 December 2006 section 18 Telecommunications Amendment Act (No 2) 2006 Notification
44: Commission's requirements on receiving application
On receiving an application made in accordance with section 43
a: notify the parties to the determination in writing that the application has been received; and
b: provide a copy of the application to the other party or parties to the determination (as the case requires)
c: request the parties to the determination to comment on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission; and
d: give public notice of the application. Section 44(b) amended 22 December 2006 section 19 Telecommunications Amendment Act (No 2) 2006 Calculation of price
45: Access provider to calculate price on request
1: On receiving an application made in accordance with section 43 an access provider
2: If an access provider
a: calculate that price in accordance with—
i: the applicable final pricing principle (as affected, if at all, by clause 2 clause 3
ii: any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission:
b: provide to the Commission—
i: a statement that sets out how the price was calculated; and
ii: all information on which the calculation of the price was based.
3: Subsection (2) is subject to the requirement (if any) set out in subpart 1 Section 45(1) amended 22 December 2006 section 20(1) Telecommunications Amendment Act (No 2) 2006 Section 45(2) amended 22 December 2006 section 20(2) Telecommunications Amendment Act (No 2) 2006 Section 45(2)(a)(ii) substituted 22 December 2006 section 20(3) Telecommunications Amendment Act (No 2) 2006
46: Offences
Section 46 repealed 22 December 2006 section 21 Telecommunications Amendment Act (No 2) 2006 Draft determination
47: Draft pricing review determination
As soon as practicable after the completion of any requirements under section 45 subpart 1 section 42
a: prepare a draft pricing review determination; and
b: give a copy of the draft pricing review determination to the parties to the determination; and
c: give public notice of the draft pricing review determination; and
d: include in the public notice the closing date for submissions, which must not be later than 30 working days after the date of publication of the draft determination.
48: Requirements for draft determination
In preparing the draft pricing review determination, the Commission—
a: must consider any calculation made under section 45
b: may consider any matters included in a determination made under section 27
49: Matters to be included in draft determination
The draft pricing review determination must include—
a: the price payable for the designated access service, which, in the opinion of the Commission, is determined in accordance with—
i: the applicable final pricing principle (as affected, if at all, by clause 2 clause 3
ii: any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission; and
b: if the Commission has considered any matters that relate to the price payable for the designated access service under section 48(b)
c: the reasons for the determination; and
d: the terms and conditions on which the determination is proposed to be made; and
e: the actions (if any) that a party to the determination must do or refrain from doing; and
f: the proposed expiry date of the determination. Section 49(a)(ii) substituted 22 December 2006 section 22 Telecommunications Amendment Act (No 2) 2006 Consultation
50: Consultation or conferences
If the Commission considers that persons, other than the parties to the determination, have a material interest in the matter to be determined, the Commission must, before preparing a determination under section 51 Determination
51: Pricing review determination
1: As soon as practicable after completing any consultation or conferences under section 50
a: prepare the pricing review determination; and
b: give a copy of the determination to the parties to the determination.
c:
2: To avoid doubt, a determination made under section 27
3: A determination under this section is secondary legislation ( see Part 3
4: When a price review determination is published, the Commission must publish on the Commission’s Internet site the Commission’s reasons for making—
a: the price review determination; and
b: any determination referred to in section 52(b) 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 • give public notice in accordance with section 6 • comply with subsection (4) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 51(1)(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 51(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 51(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
52: Matters to be included in determination
A pricing review determination must include—
a: the price payable for the designated access service, which, in the opinion of the Commission, is determined in accordance with—
i: the applicable final pricing principle (as affected, if at all, by clause 2 clause 3
ii: any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission; and
b: if the Commission has considered any matters that relate to the price payable for the designated access service under section 48(b)
c:
d: the terms and conditions (if any) on which the pricing review determination and the determination referred to in paragraph (b) (if any) is made; and
e: the actions (if any) that a party to the determination must do or refrain from doing; and
f: the expiry date of the determination. Section 52(a)(ii) substituted 22 December 2006 section 23 Telecommunications Amendment Act (No 2) 2006 Section 52(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
5: Supplementary provisions for all determinations
53: Procedure for determinations
For a determination made under this Part, the Commission—
a: is not bound by technicalities, legal forms, or rules of evidence:
b: may inform itself of any matter relevant to the determination in any way it thinks appropriate:
c: must consider all submissions made in relation to the determination and all information and opinions presented or expressed at any conference or public hearing in relation to the determination.
54: Applicant may withdraw
1: An applicant in respect of a determination (except a standard terms determination or
2: If the Commission receives a notice of withdrawal under subsection (1), then it must—
a: notify all the parties to the determination of the withdrawal; and
b: cease preparation of the determination concerned; and
c: determine any costs under sections 55 56 Section 54(1) amended 22 December 2006 section 24 Telecommunications Amendment Act (No 2) 2006
55: Commission's costs
1: The costs of the Commission in relation to a determination or application for a determination (including the costs of any expert advice) must be met by the parties to the determination in the proportions directed by the Commission in writing.
2: The Commission's costs in relation to a standard terms determination, or a pricing review determination in relation to a standard terms determination, may be met—
a: in the manner provided under subsection (1); or
b: by way of a levy under section 11
c: by a combination of the ways referred to in paragraphs (a) and (b). Section 55(2) added 22 December 2006 section 25 Telecommunications Amendment Act (No 2) 2006
56: Parties' costs
1: Subject to subsection (2), each party bears his or her own costs in relation to a determination or application for a determination.
2: The Commission may, by written direction to a party to a determination, require that person to meet some or all of the other party's costs in respect of a determination or application for a determination if, in the opinion of the Commission, the party has materially contributed to any costs or unreasonable delay.
3: The direction must specify the amount payable by each person.
57: Enforcing directions given under section 55 or section 56(2)
1: The Commission may enforce a direction given under section 55
2: A party to a determination in respect of which a direction has been given under section 56(2)
3: A direction that is filed in the High Court under this section is enforceable as a judgment of the High Court in its civil jurisdiction.
58: Clarification of determination
1: The Commission may amend a determination for the purpose of making a clarification if—
a: at any time the Commission, on its own initiative or on the application of any person, considers that a determination requires clarification; and
b:
c: no appeal is pending in respect of the determination.
2: An amendment 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 The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 58(1)(b) repealed 22 December 2006 section 26 Telecommunications Amendment Act (No 2) 2006 Section 58(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
59: Reconsideration of determination
1: Subject to subsection (2), the Commission may at any time, on the application of a party to a determination, revoke or amend the determination or revoke the determination and make a further determination in substitution for it if the Commission considers that—
a: there has been a material change of circumstances since the date on which a determination was made or last reconsidered; or
b:
c: the determination was made on the basis of information that was false or misleading in a material particular.
2: A determination may not be reconsidered if an appeal is pending in respect of the determination.
3: In reconsidering a determination, the Commission must follow the same process that was followed for the initial determination.
4: To avoid doubt, a determination continues to have effect and is enforceable pending its reconsideration under this section.
5: A revocation or amendment 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 The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 59(1)(b) repealed 22 December 2006 section 27 Telecommunications Amendment Act (No 2) 2006 Section 59(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
60: Appeals from certain determinations under Part 2
1: Subject to subsection (2), a party to a determination made under this Part may appeal to the High Court against—
a: a direction of the Commission under section 55 section 56(2)
b: the determination (including an amendment to a determination made under section 58 section 59
c: a decision of the Commission not to clarify a determination under section 58
d: a decision of the Commission not to reconsider a determination under section 59
2: No party may appeal against a determination made under this Part—
a: while a clarification of the determination under section 58
b: while a reconsideration of the determination under section 59
3: If appeal or judicial review proceedings are commenced in respect of a determination, then, until the proceedings are finally disposed of, the determination continues to have effect and is enforceable as if the proceedings had not been commenced.
4: The decision of the High Court on appeal from a determination is final unless leave to appeal to the Court of Appeal is given by the High Court or, if leave is refused by the High Court, by the Court of Appeal.
5: Section 60(5) repealed 1 January 2004 section 48(2) Supreme Court Act 2003
61: Enforcing determinations of Commission
Section 61 repealed 22 December 2006 section 28 Telecommunications Amendment Act (No 2) 2006
62: Expiry of determinations
Every determination expires on the earlier of—
a: the expiry date stated in the determination (if any); or
b: the date on which the designated service or specified service to which the determination applies ceases to have that status because it has been omitted from Schedule 1 section 66(b) Section 62 substituted 22 December 2006 section 29 Telecommunications Amendment Act (No 2) 2006
63: Application of Commerce Act 1986
Part 2
6: Matters relating to regulation-making powers for designated services and specified services
64: Mandatory review of local loop unbundling and access to, and interconnection with, Telecom's fixed PDN
Section 64 repealed 22 December 2006 section 30 Telecommunications Amendment Act (No 2) 2006
65: Expiry of designated services and specified services
Section 65 repealed 22 December 2006 section 30 Telecommunications Amendment Act (No 2) 2006
66: Alterations to Part 2 or Part 3 of Schedule 1
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Part 2 Part 3
a: adding a telecommunications service to the Part and setting out in relation to that service—
i: a description of the service; and
ii: any applicable conditions; and
iii: a description of the access providers and access seekers; and
iv: in the case of a service being added to subpart 1 Part 3
A: the applicable access principles; and
B: the limits (if any) on the applicable access principles; and
v: in the case of a service being added to subpart 1
A: any applicable initial pricing principle
B: the applicable final pricing principle; and
C: any requirement referred to in section 45
D: any additional matters that must be considered regarding the application of section 18
b: omitting a telecommunications service from the Part:
c: in respect of a service, amending—
i: the description of the service:
ii: any applicable conditions:
iii: the description of access seekers:
iv: the description of access providers:
v: the description of the applicable access principles:
vi: the description of the limits (if any) on the applicable access principles:
vii: any applicable initial pricing principle
viii: any requirement referred to in section 45
ix: any additional matters that must be considered regarding the application of section 18
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 66(1)(a)(v)(A) amended 13 November 2018 section 7(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 66(1)(c)(vii) amended 13 November 2018 section 7(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 66(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
67: Alterations to clauses 1 to 6 of Schedule 1
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend any of clauses 1 to 6
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 67(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
68: Minister's recommendation subject to procedure in Schedule 3
1: The Minister must not make a recommendation under section 66 67
2: The Commission's recommendation must be made in accordance with the procedure set out in—
a: Part 2 Part 3 Part 2
b: Part 1
3: This section does not prevent the Minister from making a recommendation under section 66 67
a: implements the effect of the Commission's recommendation on the proposed alteration; and
b: does not differ from that recommendation in any material way (for example, other than in matters of drafting style or minor detail). Section 68 substituted 22 December 2006 section 31 Telecommunications Amendment Act (No 2) 2006
68A: Application of Schedule 3A
1: Schedule 3A Schedule 3
2: However, Schedule 3A Schedule 3 Section 68A inserted 22 December 2006 section 31 Telecommunications Amendment Act (No 2) 2006
69: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: providing for the application of applicable access principles under section 29(a)
b: providing for the application of the applicable initial pricing principle under section 29(c)
c: prescribing a method or methods for the calculation of the price payable under section 45(2)
d: providing for the determination of the price payable under section 49(a)
e: providing for the determination of the price payable under section 52(a)
f: providing requirements relating to the information that must be provided to the Commission in relation to all or any of the matters referred to in paragraphs (a) to (e):
g: providing for any other matters contemplated by this Part, necessary for its administration, or necessary for giving it full effect.
2: The Minister must not make a recommendation under subsection (1) unless the Commission has recommended the making of the regulations.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 69(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
2AA: Deregulating copper fixed line access services
Part 2AA inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
1: Purpose
Subpart 1 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AA: Purpose
The purpose of this Part is to—
a: deregulate copper fixed line access services in areas where fibre fixed line access services are available; and
b: provide protections for end-users of copper fixed line access services and certain other designated services in deregulated areas; and
c: provide for the Commission to investigate whether the regulation of copper fixed line access services and certain other designated services should be altered. Section 69AA inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Deregulating copper fixed line access services
Subpart 2 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AB: Specified fibre areas
1: The Commission must, before 1 January 2020 and at least annually thereafter, carry out an assessment to determine the geographic areas in which a specified fibre service is available to end-users.
2: The Commission must, by public notice, declare an area to be a specified fibre area if the Commission determines in an assessment under subsection (1) that a specified fibre service is available to end-users in the area.
3: A notice under this section must specify the date on and after which the area is to be a specified fibre area, and that date must not be before 1 January 2020.
4: A notice under this section may describe an area by any means, including (without limitation)—
a: by use of a map; and
b: by a narrative description of the area.
5: The Commission must maintain a record of all specified fibre areas that is available, at all reasonable times, for inspection on the Commission’s Internet site in an electronic form that is publicly accessible.
6: In this section, specified fibre service
a: a fibre fixed line access service:
b: a telecommunications service provided by a regulated fibre service provider ( F section 69U Section 69AB inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AC: Withdrawal of copper fixed line access services
1: This section applies if—
a: Chorus is required by a standard terms determination made under section 30M
b: Chorus started supplying the service at a time when the end-user’s building (or, where relevant, the building’s distribution frame) was not located in a specified fibre area; and
c: as a result of a notice under section 69AB
i: the end-user’s building (or, where relevant, the building’s distribution frame) becomes located in a specified fibre area; and
ii: the service ceases to be a designated access service in the specified fibre area on and after the date specified in the notice.
2: Chorus may stop supplying the service referred to in subsection (1) only if—
a: a copper withdrawal code has been approved and Chorus complies with the requirements of the code in relation to stopping the supply of the service; or
b: the end-user chooses to have the service disconnected (other than a temporary disconnection).
3: To avoid doubt, Chorus is not required to—
a: supply a service that ceases to be a designated access service in relation to a new end-user; or
b: resupply a service that Chorus has stopped supplying in accordance with subsection (2). Section 69AC inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AD: Withdrawal of certain designated access services
1: This section applies if—
a: Chorus is required by a standard terms determination made under section 30M
b: Chorus started supplying the service at a time when the service was a designated access service; and
c: as a result of section 13
2: Chorus may stop supplying the service only if—
a: a copper withdrawal code has been approved and Chorus complies with the requirements of the code in relation to stopping the supply of the service; or
b: the end-user chooses to have the service disconnected (other than a temporary disconnection).
3: To avoid doubt, Chorus is not required to—
a: supply a service that ceases to be a designated access service in relation to a new end-user; or
b: resupply a service that Chorus has stopped supplying in accordance with subsection (2).
4: In this section, relevant service
a: Chorus’s unbundled copper local loop network:
b: Chorus’s unbundled copper local loop network backhaul (distribution cabinet to telephone exchange). Section 69AD inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AE: Application of certain TSO instruments in specified fibre areas
Despite anything in this Act, the following TSO instruments cease to apply in relation to an area that becomes a specified fibre area:
a: Telecommunications Service Obligations (TSO) Deed for Local Residential Telephone Service (except to the extent that it relates to 111 call services):
b: Telecommunications Service Obligations (TSO) Deed for TSO Network Service. Section 69AE inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AF: Copper withdrawal code
1: In this Part, copper withdrawal code Schedule 2A
2: Schedule 2A Section 69AF inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Price regulated copper services
Subpart 3 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AG: Continued application of certain standard terms determinations
1: Subsection (2) applies to a standard terms determination made under section 30M
a: Chorus’s unbundled bitstream access backhaul:
b: Chorus’s unbundled copper local loop network co-location:
c: Chorus’s unbundled copper local loop network backhaul (telephone exchange to interconnect point).
2: Despite anything in this Act, during the period starting on 1 January 2020 and ending on the close of the day immediately before the copper review date for the relevant service,—
a: the determination continues to apply to the relevant service; and
b: sections 30R 59
3: For the purposes of subsection (2)(a),—
a: the prices that apply are the year 5 prices specified in the determination; and
b: those prices increase or decrease (as appropriate) by an annual CPI adjustment on 16 December in each year (starting on 16 December 2020).
4: Subsection (5) applies to a standard terms determination made under section 30M
a: Chorus’s unbundled bitstream access:
b: Chorus’s unbundled copper low frequency service.
5: Despite anything in this Act, during the period starting on 16 December 2019 and ending on the close of the day immediately before the copper review date for the relevant service,—
a: the determination continues to apply to the relevant service; and
b: sections 30R 59
6: For the purposes of subsection (5)(a),—
a: the prices that apply are the year 5 prices specified in the determination; and
b: those prices increase or decrease (as appropriate) by an annual CPI adjustment on 16 December in each year (starting on 16 December 2020).
7: On and after the copper review date for a service referred to in subsection (1) or (4),—
a: the standard terms determination for the service continues to apply; and
b: Part 2 sections 30R 59
c: unless the maximum prices in the determination are amended in accordance with Part 2
8: In this section, copper review date
a: the investigation referred to in section 69AH(1)(a)
b: any other investigation under Schedule 3 Section 69AG inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Investigation
Subpart 4 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AH: Schedule 3 modified for investigation of certain copper services
1: Despite clause 1
a: complete, by no later than 31 December 2025, an investigation under Part 1 Schedule 1 section 66 67
i: copper fixed line access services:
ii: Chorus’s unbundled bitstream access backhaul:
iii: Chorus’s unbundled copper local loop network co-location:
iv: Chorus’s unbundled copper local loop network backhaul (telephone exchange to interconnect point); or
b: provide, within a reasonable time after 31 December 2025, written reasons why there were not reasonable grounds for starting such an investigation.
2: An investigation referred to in subsection (1)(a) must be completed in accordance with Part 1 clause 4(1) Section 69AH inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
2A: Structural separation of Telecom
Part 2A substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
1: Preliminary provisions
Subpart 1 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69A: Purpose of Part
The purpose of this Part is to provide for matters relating to the structural separation of Telecom to facilitate—
a: the promotion of competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand; and
b: efficient investment in telecommunications infrastructure and services. Section 69A substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69B: Interpretation
In this Part, unless the context otherwise requires,— asset
a: means property of any kind, whether or not situated in New Zealand, whether tangible or intangible, real or personal, corporeal or incorporeal, and whether or not subject to rights; and
b: includes—
i: estates or interests in any land, including rights of occupation of land or buildings:
ii: buildings, vehicles, plant, equipment, machinery, fixtures and fittings, and rights in them:
iii: choses in action and money:
iv: rights of any kind, and applications, objections, submissions, and appeals in respect of those rights:
v: intellectual property and applications pending for intellectual property:
vi: goodwill, and any business undertaking Chorus
a: means ChorusCo; and
b: includes any of its subsidiaries ChorusCo demerger arrangement Part 15 liabilities related party section 69U rights separation day Section 69B substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
2: Monitoring of shared assets, services, and systems
Subpart 2 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69C: Interpretation
In this subpart, unless the context otherwise requires,— arm's-length section 69D executed sharing arrangement
a: means an arrangement, agreement, contract, or understanding between Spark and Chorus
b: includes an arrangement, agreement, contract, or understanding of the kind described in paragraph (a)
c: does not include any of the following, or anything that is wholly in accordance with the following:
i: the regulated terms of supply of a designated service or a specified service; or
ii: a registered undertaking; or
iii: an undertaking under Part 4AA
iv: a deemed TSO instrument; or
v: an undertaking approved in accordance with subpart 4
vi: an arrangement that is exempted under section 69N
vii: an arrangement that relates to ensuring compliance by Spark
A: the duties imposed by the Telecommunications (Interception Capability and Security) Act 2013
B: duties or requirements imposed by any other Act, interception warrant, or other lawful authority that relate to the interception of communications. Section 69C substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69C sharing arrangement amended 13 November 2018 section 41(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69C sharing arrangement amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69C sharing arrangement amended 11 May 2014 section 123 Telecommunications (Interception Capability and Security) Act 2013
69D: Meaning of arm's-length
Without limiting the ordinary meaning of the expression, arm's-length
a: do not include elements that parties in their respective positions would usually omit; and
b: do not omit elements that parties in their respective positions would usually include,— if the parties were—
c: connected or related only by the transaction or dealing in question; and
d: acting independently; and
e: each acting in its own best interests. Section 69D substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69E: Requirements for sharing arrangements
1: Every sharing arrangement must—
a: be recorded in writing and be executed by Spark
b: be on arm's-length terms between Spark
c: be unlikely to harm competition in any telecommunications market; and
d: ensure the protection of confidential commercial information or customer confidential information
2: Spark Section 69E substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69E(1)(a) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69E(1)(b) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69E(1)(d) amended 5 December 2013 section 4 Telecommunications Amendment Act 2013 Section 69E(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69F: Commission must be notified of proposed and final sharing arrangements
1: Spark
a: not later than 10 working days after separation day, provide a copy of all sharing arrangements executed before separation day to the Commission; and
b: if a sharing arrangement is entered into after separation day,—
i: not later than 10 working days before the sharing arrangement is executed, notify the Commission of their intention to enter into the sharing arrangement and provide a copy of the proposed arrangement to the Commission; and
ii: not later than 10 working days after the final sharing arrangement is executed, provide a copy of the arrangement to the Commission.
2: Subsection (1) applies to any material amendment to a sharing arrangement as if that amendment were a sharing arrangement.
3: See sections 156L(3) 156M Section 69F substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69F(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69G: Obligation to collect and retain information for monitoring purposes
Spark Section 69G substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69G amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69H: Commission's monitoring, investigation, and enforcement powers
1: The Commission may, by notice in writing, require Spark
a: the terms, execution, or performance of a sharing arrangement:
b: any report, agreement, or other information relating to the sharing arrangement that the Commission considers necessary for the purpose of monitoring compliance with this subpart.
2: Spark
3: A notice under this section may require either or both of the following:
a: that all or any of the information be audited by a qualified auditor and that the auditor provide a report directly to the Commission on the matters that the Commission specifies as those that must be addressed in that report:
b: that all or any of the information be verified by statutory declaration in the form and by the persons required by the Commission.
4: To avoid doubt, nothing in this section limits the application of section 98
5: The Commission may, for the purpose of monitoring, investigation, and enforcement under this subpart, consult with any persons that the Commission considers may be affected by a sharing arrangement.
6: See sections 156L(3) 156M Section 69H substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69H(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69H(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69I: Commission may give non-compliance notice
1: This section applies if the Commission considers that Spark section 69E non-compliance
2: The Commission may give written notice to each party (a non-compliance notice
a: the nature of the non-compliance; and
b: the 10-day time limit for responses in section 69J
c: the 40-day time limit for rectification and enforcement ( see section 69K Section 69I substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69I(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69J: Process for responding to non-compliance notice
1: Each party may, not later than 10 working days after the date of the non-compliance notice or any further time as the Commission may allow, respond in writing to the notice either—
a: by disputing the notice; or
b: by setting out the reasons for the non-compliance.
2: The Commission must consider each party's response (if any) before deciding what action to take under subsection (3).
3: The Commission must, not later than 10 working days after the final date for the parties to respond to the non-compliance notice under subsection (1),—
a: retract the non-compliance notice; or
b: give a revised non-compliance notice; or
c: confirm the non-compliance notice.
4: If the Commission gives a revised non-compliance notice, or confirms the non-compliance notice, the Commission must—
a: set out the nature of the non-compliance; and
b: require the parties to rectify the non-compliance. Section 69J substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69K: Commission may decide on appropriate enforcement action if non-compliance persists
1: This section applies if the Commission considers that a non-compliance has not been rectified within 40 working days after the date of a non-compliance notice given under section 69I
2: The Commission may, at any time, do all or any of the following:
a: direct Spark amendment direction
b: apply for an injunction under section 69M
c: seek a pecuniary penalty under Part 4A
3: The Commission must give written notice of each decision to each party affected by the decision. Section 69K substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69K(2)(a) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69L: Application of pecuniary penalty provisions
1: Sections 156L 156M section 69K(2)(c)
2: See sections 156L(3) 156M Section 69L substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69M: Injunction may be granted by High Court
1: If the High Court is satisfied that a non-compliance has not been rectified within 40 working days after the date of a non-compliance notice under section 69I Spark
2: If the High Court is satisfied that there has been a failure to comply with a direction of the Commission given under section 69K(2)(a) Spark
3: In any proceeding under this section, the Commission, on the order of the court, may obtain discovery and administer interrogatories.
4: The court may at any time rescind or vary an order made under this section. Section 69M substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69M(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69M(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69N: Minister may grant exemption from application of subpart
1: The Minister may, by notice
a: any potential harm to competition in telecommunications markets would be likely to be trivial or inconsequential; and
b: commercial information or customer confidential information would not be disclosed.
2: The Minister must consult the Commission before granting an exemption under this section.
3:
4: The Minister may grant the exemption on any terms and conditions that the Minister thinks fit.
5: The Minister may, in like manner, vary or revoke such an exemption.
6: A notice under this section is secondary legislation ( see Part 3
7: Spark Spark The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)(a) cl 14 Presentation 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 69N substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69N(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69N(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69N(6) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69N(7) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Line of business restrictions
Subpart 3 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69O: No participation in supply of retail services
1: Chorus, or any related party of Chorus, must not participate in the supply of a telecommunications service to a person ( A
a: for A’s own use or consumption; or
b: for the use or consumption of persons who are related parties of A.
2: See sections 156L(3) 156M Section 69O substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69P: Register of non-retail users
1: The Commission must maintain a register of users for the purposes of section 69O
2: If the name of the user appears on the register maintained by the Commission under this section, it is conclusive evidence of the fact that Chorus does not breach section 69O
3: Chorus or any user of telecommunications services may make a written application to the Commission (in a form required by the Commission, if any) for a name of a user to be entered on the register.
4: The Commission must give public notice of the application as soon as practicable after receiving it.
5: The Commission must, within 15 working days of public notice of the application section 69O
6: At separation day, the register must include all of Chorus's existing unbundled copper local loop customers and unbundled bitstream access customers as at separation day, as notified to the Commission by Chorus before separation day.
7: The Commission must, at all reasonable times, make the register available for inspection on the Commission's Internet site in an electronic form that is publicly accessible. Section 69P substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69P(5) amended 5 December 2013 section 5 Telecommunications Amendment Act 2013
69Q: Variations to, and removals from, register
1: The Commission may, at any time,—
a: review and correct the register maintained under section 69P
b: remove the names of users from the register if—
i: the Commission ceases to be satisfied of the matters in section 69P(5)
ii: the Commission is satisfied that the user is insolvent or has ceased business.
2: However, the Commission must give Chorus and the user—
a: notice of its intention to remove the user from the register, and a reasonable opportunity to comment before removing a name from the register; and
b: notice that the name has been removed, as soon as practicable after removal.
3: Chorus is not in breach of section 69O Section 69Q substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69R: No services above layer 2
1: Every undertaking entered into by Chorus in favour of the Crown under subpart 4 Part 4AA
2: In this section, unless the context otherwise requires, layer 2 services New Zealand Government Ultra-Fast Broadband Initiative Invitation to Participate in Partner Selection Process
3: This Act applies to an undertaking required under this section as if the undertaking were required under subpart 4 Part 4AA Section 69R substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69S: No end-to-end services
1: Chorus, or any related party of Chorus, must not provide telecommunications links to customers except—
a: between an end-user’s building (or, in the case of a commercial building, the 2 building distribution frames) and a Chorus local or regional aggregation point; and
b: between 2 Chorus local or regional aggregation points.
2: To avoid doubt,—
a: telecommunications links provided by Chorus, or a related party of Chorus, to customers must terminate at a local or regional aggregation point; and
b: Chorus, or a related party of Chorus, must not sell a service to customers that links 2 or more end-user sites together (but a customer of Chorus can create the linking between 2 or more end-user sites).
3: However, this section does not prevent the resale of PSTN-based services for the purposes of acting as a channel to market for Telecom.
4: See sections 156L(3) 156M Section 69S substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69SA: Exemptions from sections 69R and 69S
1: The Commission may, on the terms and conditions (if any) that it thinks fit, grant an exemption from compliance with—
a: any prohibition referred to in section 69R
b: any provision or provisions of section 69S
2: An exemption may be granted in whole or in part (for example, there could be a complete exemption from a prohibition or provision or an exemption that applies only to 1 or more particular services).
3: The Commission must not grant an exemption unless—
a: it is satisfied that the exemption is consistent with the purpose set out in section 69A
b: it has had regard to whether the exemption will harm, or is likely to harm, competition in any telecommunications market; and
c: it has consulted the persons or organisations that appear to the Commission to be representative of the interests of those persons likely to be substantially affected by the exemption.
4: This section applies on and after the implementation date.
5: Section 69SB Section 69SA inserted 13 November 2018 section 27 Telecommunications (New Regulatory Framework) Amendment Act 2018
69SB: Other provisions relating to exemptions
1: An exemption under section 69SA see Part 3
2: When an exemption is published, the Commission must publish its reasons for granting the exemption, including why it is appropriate, on the Commission’s Internet site.
3:
4: The breach of a term or condition of an exemption is,—
a: in the case of an exemption under section 69SA(1)(a) section 69R
b: in the case of an exemption under section 69SA(1)(b) section 69S
5: The Commission may vary or revoke an exemption in the same way as it may grant the exemption (with the provisions of section 69SA The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (1). Legislation Act 2019 requirements for secondary legislation referred to in subsection (1) Publication The maker must: LA19 ss 73 74(1)(a) cl 14 • give public notice in accordance with section 6 • comply with subsection (3) 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 69SB inserted 13 November 2018 section 27 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69SB(1) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69SB(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69SB(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
69T: Enforcement of breaches of sections 69O and 69S
Sections 69V 156B sections 69O 69S Section 69T substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69U: Application of line of business restrictions to related parties of Chorus
1: The test for related parties in this Part is that a person is related to another person if—
a: they are acting jointly or in concert; or
b: either person acts, or is accustomed to act, in accordance with the wishes of the other person; or
c: they are related companies within the meaning of section 2(3)
d: either person is able, directly or indirectly, to exert a substantial degree of influence over the activities of the other; or
e: they are both, directly or indirectly, under the control of the same person.
2: However, for the purposes of subsection (1),—
a: a director of a company or other body corporate is not related to that company or body corporate merely because he or she is a director of that company or body corporate; and
b: a person is not able to exert a substantial degree of influence over another person merely because—
i: those persons are in competition in the same market; or
ii: one of them supplies goods or services to the other.
3: Any sharing of assets, services, and systems between Chorus and Spark section 69F(1)(a) or (b)(ii)
4: Without limiting section 69O
5: The order of responsibility for remedying breaches is, to the extent practical, that the breach must be remedied first by the party whose activity resulted in the breach. 1993 No 106, s 4A(2) s 21 Section 69U substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69U(3) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69V: Injunctions may be granted by High Court for certain contraventions
1: The High Court may, on the application of the Commission, grant an injunction restraining a person from engaging in a breach of sections 69O 69S
2: The High Court may, at any time, rescind or vary an injunction granted under this section. Section 69V substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
4: Undertakings by Chorus
Subpart 4 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69W: Purposes of subpart
The purposes of this subpart are to—
a: promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand; and
b: require transparency, non-discrimination, and equivalence of supply in relation to certain telecommunications services; and
c: facilitate efficient investment in telecommunications infrastructure and services. Section 69W substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69X: Overview
1: This subpart imposes obligations on Chorus to give undertakings—
a: to supply wholesale services using its copper access network (called relevant services in this subpart) on a non-discrimination basis; and
b: to supply a subset of those services, which Chorus consumes and which it supplies to its competitors, (called relevant regulated services in this subpart) on an equivalence basis.
2: This section is intended only as a guide to the general scheme and effect of this subpart. Section 69X substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XA: Interpretation
In this subpart, unless the context otherwise requires,— equivalence legacy access network
a: Chorus's local loop network, as defined in clause 1
b: Chorus's local telephone exchange, as defined in clause 1
c: Chorus's backhaul network (whether copper, fibre, or anything else) between the local loop network handover point in Chorus's distribution cabinet (or equivalent facility) or Chorus's local telephone exchange and the first data switch (including the first data switch); and
d: Chorus's digital subscriber line access multiplexer (or equivalent facility) local access and calling service subpart 1 non-discrimination relevant regulated services except if those services are services in relation to which the end-user’s building (or, where relevant, the building’s distribution frame) is located in a specified fibre area
a: Chorus's unbundled copper local loop network service:
b: Chorus's unbundled copper local loop network co-location service:
c: Chorus's unbundled copper local loop network backhaul (distribution cabinet to telephone exchange):
d: Chorus's unbundled copper local loop network backhaul (telephone exchange to interconnect point) relevant services
a: means—
i: wholesale telecommunications services that are provided using, or that provide access to the unbundled elements of, the legacy access network; and
ii: the designated access service described in subpart 1
b: does not include—
i: any services that are agreed by the Commission in writing to be legacy input services, being inputs to services that are no longer offered to end-users other than customers who were end-users before separation day; or
ii: any services in relation to which the end-user’s building (or, where relevant, the building’s distribution frame) is located in a specified fibre area UBA service subpart 1 Section 69XA inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69XA relevant regulated services amended 13 November 2018 section 9(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69XA relevant services replaced 13 November 2018 section 9(2) Telecommunications (New Regulatory Framework) Amendment Act 2018
69XB: Requirements for undertakings by Chorus relating to supply of certain wholesale telecommunications services
Chorus must give undertakings that—
a: require Chorus to achieve non-discrimination in relation to the supply of relevant services; and
b: set out rules and principles that Chorus will apply to ensure that non-discrimination is achieved in relation to the supply of relevant services; and
c: require Chorus to achieve equivalence of supply in relation to relevant regulated services; and
d: require Chorus to develop, in consultation with the Commission and key industry stakeholders, key performance indicators for systems and processes for relevant regulated services by which it may be judged whether Chorus is achieving equivalence of supply in relation to those services; and
e: require Chorus to develop, in consultation with the Commission and key industry stakeholders, key performance indicators by which it may be judged whether Chorus is achieving non-discrimination in relation to the supply of the UBA service; and
f: require Chorus to—
i: conduct quarterly reviews of performance as measured against the key performance indicators referred to in paragraphs (d) and (e)
ii: make all information relating to those reviews available to the Commission to support the Commission’s assessment of compliance with the undertakings; and
iii: publish quarterly reports on its performance as measured against the key performance indicators referred to in paragraphs (d) and (e)
iv: internally audit the controls and processes behind the key performance indicator reporting; and
g: require Chorus to carry out quarterly customer surveys of its performance in relation to relevant regulated services; and
h: require Chorus to—
i: implement a policy of control of commercial information provided by access seekers for relevant services and relevant regulated services, in consultation with the Commission; and
ii: internally audit the effectiveness of that policy, at the end of each of the first two 6-month periods following separation day and then annually after that; and
i: require Chorus to supply the UBA service in a bundle with the local access and calling service; and
j: require the directors of Chorus to certify that Chorus has complied with the undertakings; and
k: provide for disclosure of relevant information to the Commission, to support the Commission's assessment of compliance with the undertakings; and
l: require Chorus to commit to a reasonable plan containing time frames for a transition to the end of the sharing arrangements referred to in subpart 2 Section 69XB inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XC: Implementation of Chorus undertakings
1: On and from separation day, the undertakings approved by the Minister on or before separation day under sections 42 to 44
a: properly executed by, and binding on, Chorus; and
b: given in favour of the Crown.
2: The undertakings approved by the Minister after separation day under sections 42 to 44 subsection (1) Section 69XC inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XD: Chorus must publish Chorus undertakings
1: As soon as practicable after the date on which an undertaking takes effect under section 69XC
2: Section 156AK Section 69XD inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XE: Variation of Chorus undertakings
Sections 156AL to 156AN Section 69XE inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XF: Termination of Chorus undertakings
Section 156AO Section 69XF inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XG: Enforcement of Chorus undertakings
1: Sections 156AQ to 156AS
2: See sections 156L(3) 156M Section 69XG inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
5: Miscellaneous
Subpart 5 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Public Works Act 1981 Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XH: Application of Public Works Act 1981
1: Despite section 4(4) section 24(4) sections 40 to 42
2: However, after that transfer, sections 40 and 41
3: If, in relation to affected land that has been transferred by Telecom to Chorus, an offer made by Chorus under section 40(2) subsection (4)
4: The time referred to in subsection (3)
a: 40 working days after the offer is made or such further period as Chorus considers reasonable:
b: if an application has been made to the Land Valuation Tribunal pursuant to section 40(2A)
5: In this section,— affected land section 4(4) Public Works Act 1981 land Public Works Act 1981 working day Public Works Act 1981 Section 69XH inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Resource Management Act 1991 issues Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XI: Requiring authority status under Resource Management Act 1991
1: Chorus is approved as a requiring authority, as a network utility operator, under the Resource Management Act 1991
a: constructing or operating, or proposing to construct or operate, a network for the purpose of telecommunication as defined in section 5
b: constructing or operating, or proposing to construct or operate, a network for the purpose of radiocommunications as defined in section 2(1) of the Radiocommunications Act 1989
2: Part 8 section 167 Section 69XI inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XJ: Designations under Resource Management Act 1991
1: The Minister may, before separation day, by notice in the Gazette section 166
a: designations that are to be transferred to Chorus:
b: designations that are to be additionally granted back to Telecom.
2: On separation day,—
a: all the rights and responsibilities of Telecom in relation to the designations listed in a Gazette subsection (1)(a) section 180
b: the designations listed in a Gazette subsection (1)(b) subsection (3)
3: For the purposes of section 177
a: the designations transferred to Chorus under subsection (2)(a)
b: the additional designations granted to Telecom under subsection (2)(b)
4: Part 8 Section 69XJ inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Restrictive covenants Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XK: Certain restrictive covenants
1: This section applies to any restrictive covenant that is registered in favour of land—
a: of which Telecom was a registered proprietor immediately before separation day; and
b: that is transferred from Telecom to Chorus on separation day.
2: Despite the transfer of land to Chorus, Spark Spark
3: This section does not limit the rights to enforce the covenant of Chorus, Chorus’s successors in title, and persons claiming through Chorus or Chorus’s successors in title.
4: The Registrar-General may enter in the register relating to the burdened land, the benefited land, or both, a notification of the effect of this section as if it were an instrument. Section 69XK inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69XK(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Government Superannuation Fund Act 1956 Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XL: Protection of existing members of Government Superannuation Fund
1: The Government Superannuation Fund Act 1956 subsection (2)
2: The persons are every person who, immediately before separation day,—
a: is employed by Telecom; and
b: is deemed to be employed in the Government service under section 2A
c: is a contributor to the Government Superannuation Fund under Part 2 2A
3: For the purpose of applying the Government Superannuation Fund Act 1956 Section 69XL inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
6: Taxation consequences of structural separation
Subpart 6 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XM: Interpretation in this subpart
In this subpart, unless the context requires otherwise,— appointed day
a: for a purpose specified in a proposal approved by Order in Council made under section 46 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
b: if there is no relevant day under paragraph (a) Chorus company demerger distribution
a: arises under the demerger arrangement; and
b: comprises—
i: an amount determined by reference to the value of a holder's entitlement to ordinary shares in ChorusCo:
ii: ordinary shares in ChorusCo to which the holder is entitled, or proceeds from the disposal of that holder's entitlement to ordinary shares in ChorusCo designated assets and liabilities section 46 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 designated assets designated liabilities income year Income Tax Act 2007 Inland Revenue Acts Tax Administration Act 1994 Telecom company vest vesting year Section 69XM inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XN: Purpose
The purpose of this subpart is to ensure that—
a: the vesting of the designated assets and liabilities in Chorus does not give rise to tax consequences under the Inland Revenue Acts for Telecom or Chorus that would not have arisen if they were the same person:
b: no tax consequences arise under the Inland Revenue Acts on the appointed day for any shareholder of Telecom Corporation of New Zealand Limited or Chorus from the demerger distribution that would not have arisen if the vesting of the designated assets and liabilities and the demerger distribution had not occurred. Section 69XN inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XO: Depreciation
1: For the purposes of the Income Tax Act 2007 asset
a: the relevant Telecom company has a deduction for an amount of depreciation loss for the period beginning on the first day of the vesting year and ending on the day before the appointed day:
b: the relevant Telecom company does not derive depreciation recovery income and does not have a deduction for an amount of depreciation loss under sections EE 44 to EE 52
c: the relevant Chorus company must calculate, on and after the appointed day, depreciation recovery income and deductions for amounts of depreciation loss as if, in respect of the period up to and including the appointed day, it and the Telecom company were the same person.
2: In this section, depreciable property, depreciation loss depreciation recovery income Income Tax Act 2007 Section 69XO inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XP: Tax effect of distribution of ChorusCo shares
1: For the purposes of the Income Tax Act 2007
a: the vesting of the designated assets and liabilities:
b: the demerger distribution:
c: a transaction necessary for carrying into effect the vesting of the designated assets and liabilities, or the demerger distribution, if, for that transaction, there is no party other than Chorus companies and Telecom companies.
2: The demerger distribution on the appointed day—
a: is not a dividend or other kind of assessable income for the purposes of the Income Tax Act 2007
b: is not a dutiable gift for the purposes of the Estate and Gift Duties Act 1968
c: is, for any relevant Telecom company, a disposition for the cost price of the share, for the purposes of the Income Tax Act 2007
3: For the purposes of the Income Tax Act 2007
a: acquiring the relevant ChorusCo share or shares at the same time and for the same purposes as the Telecom Corporation of New Zealand Limited share or shares that give rise to that person's entitlement to the demerger distribution:
b: having paid the amount given by subsection (4) for the acquisition of the ChorusCo share or shares:
c: having paid the amount given by subsection (5) for the acquisition of the Telecom Corporation of New Zealand Limited share or shares.
4: For the purposes of subsection (3)(b), the amount paid for the acquisition is calculated using the following formula: The following table contains a formula pre-calculation amount paid × Chorus mv combined mv
5: For the purposes of subsection (3)(c), the amount paid for the acquisition is calculated using the following formula: The following table contains a formula pre-calculation amount paid × Telecom mv combined mv
6: In the formulas in subsections (4) and (5),—
a: pre-calculation amount paid
b: Chorus mv section 46
c: Telecom mv section 46
d: combined mv section 46 paragraphs (b) and (c)
7: Subsection (8) applies where—
a: an arrangement entered into on or before the appointed day would, but for the demerger distribution, be a returning share transfer or share-lending arrangement in respect of which the original share is a Telecom Corporation of New Zealand Limited share; and
b: if, under the relevant arrangement in respect of the Telecom Corporation of New Zealand Limited share, the share user is required to transfer a Telecom Corporation of New Zealand Limited share or shares and a ChorusCo share or shares to the share supplier.
8: If subsection (7) applies,—
a: the relevant ChorusCo share or shares are treated as part of the relevant Telecom Corporation of New Zealand Limited share or shares for the purposes of the definitions of identical share, original share, returning share transfer, and share-lending arrangement in the Income Tax Act 2007
b: subsection (3) applies to the share supplier as if the share supplier were the person referred to in that subsection.
9: In this section, available subscribed capital dividend identical share original share returning share transfer share-lending arrangement share supplier share user Income Tax Act 2007 Section 69XP inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XQ: Goods and Services Tax Act 1985
1: The vesting of the designated assets and liabilities is treated as being a taxable supply on the appointed day that is charged with tax at the rate of 0% for the purposes of the Goods and Services Tax Act 1985
2: For the purpose of calculating, under the Goods and Services Tax Act 1985 subsection (1)
3: If it is necessary for a tax invoice, a credit note, or a debit note (the document Goods and Services Tax Act 1985
4: In this section, credit note debit note input tax supply, tax tax invoice Goods and Services Tax Act 1985 Section 69XQ inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XR: Prepayments
1: For the purposes of the Income Tax Act 2007,—
a: for the vesting year, the relevant Telecom company is treated as having an unexpired amount of expenditure under section EA 3 unexpired portion section EA 3(4) to (7)
b: the relevant Telecom company has, for the vesting year, income under section CH 2 of that Act for the unexpired portion described in paragraph (a)
c: for an income year starting after the appointed day, the relevant Telecom company is not allowed a deduction for the unexpired portion under section DB 50 section CH 2
d: the relevant Chorus company has, for the vesting year, a deduction for the unexpired portion described in paragraph (a) section DB 50
e: for the vesting year and any subsequent income year, section EA 3 paragraph (a)
2: In this section, expenditure Income Tax Act 2007 section EA 3(2) Section 69XR inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XS: Expenditure or loss incurred, and amounts derived
A Chorus company and the relevant Telecom company are treated as the same person for the period prior to and including the appointed day for the purpose of determining the following, under the Income Tax Act 2007
a: whether a deduction is allowed for an amount of expenditure or loss incurred by the Chorus company in connection with the designated assets or liabilities:
b: the amount of any deduction of the Chorus company in connection with the designated assets or liabilities:
c: whether an amount derived by the Chorus company in connection with the designated assets or liabilities is income:
d: the amount of any income of the Chorus company in connection with the designated assets or liabilities. Section 69XS inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XT: Bad debts
Sections CG 3 DB 31 Section 69XT inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XU: Unpaid employment expenditure
Sections DC 11(2) and (3) EA 4(6) person B person A Section 69XU inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XV: Vesting of designated assets and liabilities
The vesting of the designated assets and liabilities in a Chorus company—
a: does not give rise to a dutiable gift for the purposes of the Estate and Gift Duties Act 1968
b: does not give rise to a dividend, or, except as provided in this subpart, other assessable income, for the purposes of the Income Tax Act 2007
c: does not, except as provided in this subpart, give rise to a deduction for the purposes of the Income Tax Act 2007 Section 69XV inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XW: Revenue account property
1: For the purposes of the Income Tax Act 2007 property
2: In this section, tax book value
a: for the property, if it is trading stock or an excepted financial arrangement acquired by the relevant Telecom company before the vesting year, the opening value of the property under section DB 49
b: for the property, if paragraph (a)
3: In this section, excepted financial arrangement revenue account property trading stock Income Tax Act 2007 Section 69XW inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XX: Leased assets
For the purposes of the Income Tax Act 2007 section EJ 10
a: the Telecom company must calculate an amount to be allocated to the vesting year under section EJ 10(3) and (4)
b: the relevant Chorus company must calculate an amount to be allocated to the vesting year under section EJ 10(3) and (4)
c: section EJ 10 Section 69XX inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XY: Finance leases: financial arrangements rules
1: For the purposes of the financial arrangements rules as defined in section EW 1(2)
a: if the finance lease is an asset of the Telecom company, the Chorus company is treated as paying to the Telecom company an amount of consideration for the finance lease that is equal to the tax book value of the finance lease on the relevant day:
b: if the finance lease is a liability of the Telecom company, the Telecom company is treated as paying to the Chorus company an amount of consideration for the finance lease that is equal to the tax book value of the finance lease on the relevant day:
c: the Telecom company must calculate, on the relevant day, a base price adjustment under section EW 31
d: if the Chorus company calculates, on or after the relevant day, a base price adjustment under section EW 31
e: sections EW 38 EW 42 GB 21
2: In this section,—
a: finance lease Income Tax Act 2007
b: tax book value subpart EW Section 69XY inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XZ: Approved issuer levy and administrative status
1: For the purposes of the Income Tax Act 2007 Stamp and Cheque Duties Act 1971
2: The relevant Telecom company and the relevant Chorus company are treated as the same person, for the period prior to and including the appointed day, for the purposes of the making, giving, or receiving of any election, notice, certificate, and filing provided for under the Inland Revenue Acts.
3: A Telecom company and the relevant Chorus company are treated as the same person for the purposes of receiving the benefit of—
a: a provisional rate, as defined in section EE 67
b: a special rate, as defined in section EE 67
4: In this section, registered security Income Tax Act 2007 Section 69XZ inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
2B: Information disclosure requirements
Part 2B repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69Y: Purpose
Section 69Y repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69Z: Parameters of Part
Section 69Z repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZA: Interpretation
Section 69ZA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZB: Accounting separation of Telecom
Section 69ZB repealed 1 July 2011 section 47 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69ZC: Information disclosure by all access providers
Section 69ZC repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZD: Miscellaneous provisions relating to Commission's information disclosure requirements
Section 69ZD repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZE: Publication of Commission's information disclosure requirements
Section 69ZE repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZF: Information to be supplied to Commission
Section 69ZF repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZG: Commission to publish summaries
Section 69ZG repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZH: Reasonable charge may be imposed for providing copies of statements
Section 69ZH repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Telecommunications service obligations
1: TSO instruments
70: Declaration of TSO instruments
1: The purpose of this section is to facilitate the supply of certain telecommunications services to groups of end-users within New Zealand to whom those telecommunications services may not otherwise be supplied on a commercial basis or at a price that is considered by the Minister to be affordable to those groups of end-users.
2: Subject to subsection (3), the Governor-General may, by Order in Council made on the recommendation of the Minister, declare an instrument that is identified in the Order in Council and that meets the requirements set out in subsection (4) to be a TSO instrument.
3: The Minister must not make a recommendation under subsection (2) unless—
a: the service provider to whom the instrument applies agrees to the instrument being declared a TSO instrument; and
b: the Minister has first—
i: consulted liable persons and any persons and organisations that the Minister considers appropriate having regard to the subject matter of the proposed TSO instrument; and
ii: assessed whether or not contestability could reasonably be achieved in relation to each of the obligations to which the instrument applies.
4: An instrument that is to be declared a TSO instrument must—
a: record a contract or arrangement or an understanding between the Crown and a service provider for the supply of a particular telecommunications service or range of telecommunications services; and
b: identify the group of end-users to whom the service must be supplied; and
c: define the geographical area within which the service must be supplied; and
d: specify the retail price at, or below which, the service must be supplied; and
e: specify the criteria that must be met for the standard of the service to be supplied.
5: An order under this section is secondary legislation ( see Part 3
5: 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 70(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 70(5) repealed 22 December 2006 section 33 Telecommunications Amendment Act (No 2) 2006
71: Deemed TSO instrument
1: Despite anything to the contrary in section 70 deemed TSO instrument
2: Subsection (1) applies to any other instrument that—
a: includes or records provisions that state that the parties intend the instrument to be a deemed TSO instrument under this Act; and
b: is conditional on, or entered into as a consequence of, the structural separation of Telecom. Section 71(2) substituted 1 July 2011 section 8 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
71A: TSO instrument may specify total amount payable by the Crown
1: A TSO instrument may specify the total amount payable by the Crown under the instrument for each financial year (the specified amount
2: The total amount may be specified as—
a: a fixed monetary amount; or
b: a capped monetary amount; or
c: an indexed monetary amount; or
d: a formula for the calculation of a monetary amount; or
e: any combination of paragraphs (a) to (d). Section 71A substituted 1 July 2011 section 9 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
72: New KSO does not alter or revoke constitution of Telecom
Section 72 repealed 1 July 2011 section 10 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
73: When KSO part of original KSO ceases to have effect
Section 73 repealed 1 July 2011 section 10 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
74: Compliance with TSO instrument
1: A TSO provider must comply with the terms of a TSO instrument.
2: The statutory duty in subsection (1) does not limit or affect any right, duty, liability, or remedy in respect of a TSO instrument that exists or is available apart from this Act. Section 74 substituted 1 July 2011 section 11 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
75: Variation of TSO instrument
A variation of—
a: an instrument that is declared to be a TSO instrument under section 70 section 70(4)
b: a deemed TSO instrument must be treated as part of the deemed TSO instrument. Section 75 heading amended 1 July 2011 section 12(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 75(a) amended 1 July 2011 section 12(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
76: When instrument ceases to be TSO instrument
1: An instrument ceases to be a TSO instrument,—
a: in the case of an instrument that is declared to be a TSO instrument under section 70
b: in the case of a deemed TSO instrument, on a date appointed by the Governor-General by Order in Council made on the recommendation of the Minister; or
c: if the instrument is terminated in accordance with its terms.
2: The Minister must not make a recommendation under subsection (1)(a) or (b) unless,—
a: in the case of an instrument that is declared to be a TSO instrument under section 70
b: in the case of a deemed TSO instrument, the service provider to whom that instrument applies agrees to that instrument ceasing to have effect as a deemed TSO instrument.
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 76 substituted 1 July 2011 section 13 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 76(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
77: Notification of TSO instrument
1: The Minister must notify the Commission of—
a: every instrument that is declared to be a TSO instrument under section 70
b: every deemed TSO instrument.
2: The Commission must give public notice of every TSO instrument. Section 77 substituted 1 July 2011 section 14 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
78: Application of Commerce Act 1986
Part 2
79: When 2 or more bodies corporate must be treated as 1 person
1: For the purposes of this Part, any 2 or more bodies corporate must be treated as 1 person if—
a: one of them is a body corporate of which the others are subsidiaries; or
b: all of them are subsidiaries of the same body corporate; or
c: all of them are associates of each other; or
d: one of them owns or controls shares that in the aggregate carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of the others; or
e: a third person owns or controls shares in each of them that carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of each of them.
2: For the purposes of subsection (1)(c), a body corporate is an associate of another if that body corporate is able, whether directly or indirectly, to exert a substantial degree of influence over the activities of the other.
3: A body corporate is not able to exert a substantial degree of influence over another body corporate for the purposes of subsection (2) just because—
a: those bodies corporate are in competition in the same market; or
b: one of them supplies goods or services to the other.
4: If any of the circumstances described in subsection (1)(a) to (e) apply to 2 or more bodies corporate for part of a year, those bodies corporate must be treated as 1 person in respect of that part of the year to which the relevant circumstance applies. Section 79 substituted 22 December 2006 section 36 Telecommunications Amendment Act (No 2) 2006 Section 79(4) inserted 3 May 2017 section 7 Telecommunications (Property Access and Other Matters) Amendment Act 2017
2: Amounts payable by liable persons to the Crown
Subpart 2 heading substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Annual procedure for determining amounts payable by liable persons to the Crown Heading substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
80: Interpretation
In this subpart, unless the context otherwise requires,— financial reporting standard section 5(1) financial statements
a: has the same meaning as in section 6 section 79
b: if section 79 section 7 minimum telecommunications revenue section 101(1)(a)
a: telecommunications services by means of its PTN:
b: telecommunications services by means that rely primarily on the existence of its PTN or any other PTN. Section 80 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 80 financial reporting standard inserted 3 May 2017 section 8 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 80 financial statements replaced 3 May 2017 section 8 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Requirement to produce certain information Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
81: Subpart does not apply to certain liable persons
1: This subpart does not apply to a liable person in respect of a financial year ( financial year A
a: the liable person was not trading in the financial year preceding financial year A; or
b: the liable person's telecommunications revenue for the year preceding financial year A was less than the minimum telecommunications revenue.
2: For the purpose of determining whether a person is a liable person to whom this subpart applies in respect of a financial year, the Commission may, by written notice to that person, require the person to provide to the Commission, within the time specified in the notice,—
a: the person’s financial statements for the year preceding financial year A, which may be the financial statements for—
i: the financial year as defined in section 5
ii: if the person has a different accounting period, the relevant period for that person, provided that the financial statements are for a period of 12 consecutive months ending not more than 6 months before 30 June in the year preceding financial year A; and
b: any further information specified by the Commission for the purpose of enabling it to verify the telecommunications revenue of that person for the year preceding financial year A; and
c: a certificate that complies with subsection (3).
3: A certificate complies with this subsection if—
a: it certifies the person's telecommunications revenue for the year preceding financial year A; and
b: it is signed by 2 directors of the person with the authority of the other directors. Section 81 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 81(2)(a) replaced 3 May 2017 section 9 Telecommunications (Property Access and Other Matters) Amendment Act 2017
81A: Application of subpart if non-liable person acquires assets of liable person
1: Subsection (2) applies if, during a financial year, a liable person disposes of assets used to generate qualified revenue and a person who acquires those assets is a non-liable person.
2: The acquirer of the assets must, in relation to revenue associated with those assets, pay the amount of the telecommunications development levy determined under section 88(b) section 89
3: To avoid doubt, an acquirer of assets who does not receive the minimum telecommunications revenue is not a liable person. Section 81A inserted 3 May 2017 section 10 Telecommunications (Property Access and Other Matters) Amendment Act 2017
82: Liable persons must produce information on qualified revenue
Not later than 60 working days before the end of each financial year ( financial year A
a: its financial statements for the financial year preceding financial year A; and
b: any further information specified by the Commission for the purpose of enabling it to verify the qualified revenue of that person for the financial year preceding financial year A. Section 82 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Net cost Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
83: Liable persons must produce information for purposes of liability allocation determination
1: Not later than 60 working days after the end of each financial year, each liable person must provide to the Commission—
a: all prescribed information or, if there is no prescribed information, information specified by the Commission, for the purpose of enabling the Commission to make its determination in accordance with section 88(a)
b: either—
i: a report on the information provided by the liable person under subsection (1)(a), prepared by a qualified auditor in accordance with an auditing and assurance standard issued under section 12
ii: an alternative form of assurance, as specified by the Commission, that the Commission is satisfied will enable it to make a determination.
2: Section 83 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 83(1)(b) replaced 3 May 2017 section 11(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 83(2) repealed 3 May 2017 section 11(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017
84: Commission to prepare draft liability allocation determination
1: The Commission must—
a: prepare a draft liability allocation determination for each financial year; and
b: give public notice of that draft determination; and
c: include in the public notice the closing date for submissions, which must be not later than 20 working days after the date of giving public notice.
2: The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 80 working days after the end of the financial year. Section 84 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Amount of revenue received by liable persons in relation to TSO instrument Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
85: Matters to be included in draft liability allocation determination
1: A draft liability allocation determination must include—
a: the amount of each liable person's qualified revenue; and
b: the amount of the telecommunications development levy payable by each liable person for the financial year, calculated in accordance with the following formula: The following table is small and contains a formula. a × c b where— a is the amount of the liable person's qualified revenue b is the sum of all liable persons' qualified revenue c is the telecommunications development levy specified for the relevant year in Schedule 3B
c: the methodology applied by the Commission in preparing the determination; and
d: the reasons for the determination.
2: To avoid doubt, the Commission may determine what revenue basis to use for the purposes of subsection (1)(a) (for example, a net revenue basis). Section 85 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
85A: Certain revenue from broadcasting services must be excluded from qualified revenue
1: For the purposes of this subpart, the amount of a liable person’s qualified revenue must exclude the following amounts (as determined in accordance with any specifications set by the Commission):
a: any amount of revenue that is received by a liable person in relation to a broadcasting service that is supplied to end-users free of charge (for example, revenue derived from a free-to-air radio or television service):
b: any amount of revenue that is received before 1 July 2020 by a liable person in relation to any other broadcasting service.
2: The specifications set by the Commission may (without limitation) provide for the apportionment of any amount of revenue if the amount is received in connection with a service referred to in subsection (1) and 1 or more other services. Section 85A inserted 13 November 2018 section 10 Telecommunications (New Regulatory Framework) Amendment Act 2018 General provision relating to TSO cost allocation determination and TSO cost calculation determination Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
86: Conferences on draft liability allocation determination
The Commission may—
a: hold conferences in relation to the draft liability allocation determination; and
b: invite to those conferences any person who has a material interest in the determination. Section 86 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 TSO cost allocation determination Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
87: Commission to prepare final liability allocation determination
1: The Commission must—
a: prepare a final liability allocation determination; and
b:
c: give a copy of that final determination to all liable persons.
2: The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 20 working days after the closing date for submissions specified in accordance with section 84(1)(c)
3: A determination 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 The maker must: LA19 ss 73 74(1)(a) cl 14 • give public notice in accordance with section 6 • comply with subsection (1)(c) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 87 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 87(1)(b) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 87(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
88: Matters to be included in final liability allocation determination
A final liability allocation determination must include—
a: the amount of each liable person's qualified revenue; and
b: the amount of the telecommunications development levy payable by each liable person, calculated in accordance with the formula set out in section 85(1)(b)
c: the methodology applied by the Commission in preparing the determination; and
d: the reasons for the determination. Section 88 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
89: Payment by liable persons to the Crown
1: Each liable person must pay to the Crown the amount set out in the determination in accordance with section 88(b)
2: If that amount is not paid on or before the due date,—
a: it is recoverable in any court of competent jurisdiction as a debt due to the Crown; and
b: the liable person must pay the Crown interest on the unpaid amount at the 90-day bank bill rate (as at 21 working days after the date on which the determination is publicly notified) plus 5% for the period from the time the amount was due until the time at which it is paid.
3: Subsection (2) does not authorise the imposing of interest on interest. Section 89 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 General matters Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
90: Crown use of telecommunications development levy
1: The amounts paid by liable persons under section 89 telecommunications development levy
a: to pay TSO charges:
b: to pay for non-urban telecommunications infrastructure development:
c: to pay for upgrades to the emergency service calling system:
d: any other purpose that the Minister considers will facilitate the supply of certain telecommunications services to groups of end-users within New Zealand to whom those telecommunications services may not otherwise be supplied on a commercial basis or at a price that is considered by the Minister to be affordable to those groups of end-users.
2: The telecommunications development levy must not be used for a purpose under subsection (1)(d) unless the Minister has first consulted liable persons and any persons and organisations that the Minister considers appropriate having regard to the proposed use of the levy.
3: To avoid doubt, except as provided in section 94L section 89 Section 90 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
91: Commission must notify final liability allocation determination before notifying TSO cost calculation determination
1: The Commission may determine the priority between the preparation of a liability allocation determination and the preparation of a TSO cost calculation determination and, accordingly, may comply with sections 84 to 88 sections 94F to 94K
2: Section 91 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 91(2) repealed 3 May 2017 section 12 Telecommunications (Property Access and Other Matters) Amendment Act 2017 TSO cost calculation determination Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
92: Annual telecommunications development levy may be reduced by Order in Council
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 3B
2: The Minister must not recommend the making of an order unless the Minister is satisfied that the full amount set out in Schedule 3B section 90
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 92 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 92(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
2A: TSO charges payable by the Crown
Subpart 2A inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Assessment of compliance Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93: Assessment of compliance with TSO instrument
Not later than 60 working days after the end of each financial year, the Commission must—
a: assess a TSO provider's compliance with its TSO instrument during that financial year in accordance with any process set out in the TSO instrument; and
b: notify the TSO provider and the Minister, in writing, of any non-compliance by the TSO provider with the TSO instrument. Section 93 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93A: Matters to be included in draft TSO cost calculation determination
Section 93A repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93B: Conferences on draft TSO cost calculation determination
Section 93B repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93C: Commission to prepare final TSO cost calculation determination
Section 93C repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93D: Requirements for final TSO cost calculation determination
Section 93D repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93E: Matters to be included in final TSO cost calculation determination
Section 93E repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Calculation of amount payable by liable person Heading 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93F: Calculation of amount payable by liable person
Section 93F repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 TSO provider may request TSO cost calculation determination Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94: TSO provider under TSO instrument without specified amount may request TSO cost calculation determination
1: If a TSO provider under a TSO instrument that does not contain a specified amount wishes to have the TSO charges for the instrument determined in respect of a financial year, the TSO provider must notify the Commission that it wishes to invoke the procedure in sections 94D to 94K
2: The notification must be—
a: in writing; and
b: given not later than 90 working days after the end of the relevant financial year.
3: A TSO provider under a deemed TSO instrument who gives notice under subsection (1) Section 94 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94(3) added 30 November 2011 section 36 section 54 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Calculation of amount payable by TSO provider Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94A: TSO provider who requests TSO cost calculation determination liable for costs in certain circumstances
1: A TSO provider who notifies the Commission under section 94 sections 94F to 94K
2: The Commission may enforce a direction given under subsection (1) by filing it in the prescribed form in the Wellington Registry of the High Court.
3: A direction that is filed in the Registry of the High Court under this section is enforceable as a judgment of the High Court in its civil jurisdiction. Section 94A substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94B: Withdrawal of request for TSO cost calculation determination
1: A TSO provider who notifies the Commission under section 94
2: The withdrawal must be made by submitting a notice in writing to the Commission before the Commission publicly notifies its final TSO cost calculation determination under section 94J(1)(b)
3: A TSO provider who withdraws a request for a TSO cost calculation determination must pay the costs of the Commission (including the costs of any expert advice) relating to as much of the procedure in sections 94F to 94K
4: Section 94A(2) and (3) Section 94B inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94C: TSO charges deemed to be zero if TSO provider does not request TSO cost calculation determination
If a TSO provider under a TSO instrument that does not contain a specified amount does not notify the Commission in accordance with section 94
a: sections 91 94D to 94L
b: the TSO charges for the instrument are deemed to be zero. Section 94C inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Annual procedure for determining TSO charges payable by the Crown Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94D: Calculations of net cost and auditor's report must be given to Commission
1: Not later than 90 working days after the end of each financial year, a TSO provider under a TSO instrument that does not contain a specified amount must provide to the Commission—
a: calculations of the net cost to the TSO provider of complying with the TSO instrument during the financial year; and
b: a report prepared by a qualified auditor that includes a statement of whether or not the calculations comply with—
i: any prescribed requirements relating to those calculations; and
ii: any requirements of the Commission.
2: This section is subject to section 94C Section 94D inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94E: Considerations for determining net cost
1: In calculating the net cost under section 94D section 94F section 94J
a: in the case of an instrument that is declared to be a TSO instrument under section 70
b: in the case of a deemed TSO instrument, the range of direct and indirect revenues and associated benefits derived from providing telecommunications services to all end-users connected to existing residential lines, less the costs of providing those services to those end-users:
c: the provision of a reasonable return on the incremental capital employed in providing those services to end-users.
2: Subsection (1) is subject to subsections (3) and (4).
3: In calculating the net cost for the purposes of a draft TSO cost calculation determination under section 94F section 94J
a: may choose not to include profits from any new telecommunications services that involve significant capital investment and that offer capabilities not available from established telecommunications services; and
b: must not include any losses from telecommunications services other than services that the TSO instrument requires the TSO provider to provide; and
c: must consider the purpose set out in section 18
4: In calculating the net cost under section 94D
5: In this section,— established telecommunications services new telecommunications services Section 94E inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94EA: Calculations of net revenue and auditor's report must be given to Commission
1: This section applies to a TSO provider under a deemed TSO instrument that requires the TSO provider to provide a telecommunications service to end-users and who is served with a copy of a notice under section 94(3)
2: Not later than 60 days after receiving the copy of the notice served under section 94(3)
a: calculations of the net revenue of the TSO provider for the financial year; and
b: a report prepared by a qualified auditor that includes a statement of whether the calculations comply with—
i: any prescribed requirements relating to those calculations; and
ii: any requirements of the Commission. Section 94EA inserted 30 November 2011 section 36 section 55 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94EB: Considerations for determining net revenue
1: In calculating net revenue under section 94EA section 94F section 94J
2: In calculating the net revenue for the purposes of a draft TSO cost calculation determination under section 94F section 94J
a: may choose not to include profits from any new telecommunications services that involve significant capital investment and that offer capabilities not available from established telecommunications services; and
b: must not include any losses from telecommunications services other than services that the TSO instrument requires the TSO provider to provide; and
c: must consider the purpose set out in section 18
3: In calculating net revenue under section 94EA subsection (2)(a) to (c)
4: In this section, established telecommunications services new telecommunications services section 94E Section 94EB inserted 30 November 2011 section 36 section 55 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94F: Commission to prepare draft TSO cost calculation determination
1: The Commission must—
a: prepare a draft TSO cost calculation determination in respect of each TSO instrument for each financial year; and
b: give public notice of that draft determination; and
c: include in the public notice the closing date for submissions, which must be not later than 20 working days after the date of giving public notice.
2: The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 120 working days after the end of the financial year.
3: This section is subject to sections 94 94C Section 94F inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94G: Matters to be included in draft TSO cost calculation determination
A draft TSO cost calculation determination must include,—
a: if the TSO instrument does not contain a specified amount, the net cost to the TSO provider of complying with the TSO instrument during the financial year and all material information that—
i: relates to the calculation of the net cost; and
ii: would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and
ab: if the TSO instrument does not contain a specified amount and is a deemed TSO instrument, the net revenue of all providers under deemed TSO instruments, excluding the provider whose net cost is set out in paragraph (a)
i: relates to the calculation of the net revenue; and
ii: would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of any TSO provider; and
b: if the TSO instrument contains a specified amount, the dollar amount of the specified amount and all material information that—
i: relates to the calculation of that amount; and
ii: would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and
c: the amount (if any) by which the total amount that the TSO provider would receive from the Crown in relation to the TSO instrument must be reduced because the TSO provider has not complied with the TSO instrument; and
d: the methodology applied by the Commission in preparing the determination; and
e: the reasons for the determination. Section 94G inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94G(ab) inserted 30 November 2011 section 36 section 56 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94H: Requirements for draft TSO cost calculation determination
In preparing a draft TSO cost calculation determination of the matters referred to in section 94G(c) section 93(b) section 94F(1)(b) Section 94H inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94I: Conferences on draft TSO cost calculation determination
The Commission may—
a: hold conferences in relation to a draft TSO cost calculation determination; and
b: invite to those conferences any person who has a material interest in the determination. Section 94I inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94J: Commission to prepare final TSO cost calculation determination
1: The Commission must—
a: prepare a final TSO cost calculation determination; and
b:
c: give a copy of that final determination to the Minister, all liable persons, and the TSO providers in relation to the TSO instrument.
2: The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 40 working days after the closing date for submissions specified in accordance with section 94F(1)(c)
3: This section is subject to sections 94 94C
4: A determination under this section is secondary legislation ( see Part 3
5: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. 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 • give public notice in accordance with section 6 • comply with subsection (5) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 94J inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94J(1)(b) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 94J(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 94J(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
94K: Matters to be included in final TSO cost calculation determination
1: A final TSO cost calculation determination must include,—
a: if the TSO instrument does not contain a specified amount, the net cost to the TSO provider of complying with the TSO instrument during the financial year and all material information that—
i: relates to the calculation of the net cost; and
ii: would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and
ab: if the TSO instrument does not contain a specified amount and is a deemed TSO instrument, the net revenue for the financial year of all providers under deemed TSO instruments, excluding the provider whose net cost is set out under paragraph (a)
i: relates to the calculation of the net revenue; and
ii: would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of any TSO provider; and
b: if the TSO instrument contains a specified amount, the dollar amount of the specified amount and all material information that—
i: relates to the calculation of that amount; and
ii: would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and
c: the amount (if any) by which the total amount that the TSO provider would receive from the Crown in relation to the TSO instrument must be reduced because the TSO provider has not complied with the TSO instrument; and
d: the amount payable by the Crown to the TSO provider in relation to the TSO instrument in respect of the financial year calculated,—
i: in the case of a TSO instrument that does not contain a specified amount and is not a deemed instrument
ia: in the case of a TSO instrument that does not contain a specified amount and is a deemed TSO instrument, by subtracting the amount of the reduction (if any) referred to in paragraph (c) paragraph (ab) paragraph (a)
ii: in the case of a TSO instrument that contains a specified amount, by subtracting the amount of the reduction (if any) referred to in paragraph (c) from the specified amount referred to in paragraph (b); and
e: the amount payable by the Crown to the TSO provider in relation to the TSO instrument for the loss of use of the amount referred to in paragraph (d), calculated at the 90-day bank bill rate (as at the date of the final determination) for the period commencing from the end of the financial year and ending with the date of the final TSO cost calculation determination; and
f: the methodology used by the Commission in preparing the determination.
g:
2: To avoid doubt, if the calculation under subsection (1)(a) or (b) results in a figure that is zero or less, the amount for the purposes of subsection (1)(d) and (e), and that must be included in the determination, is zero. Section 94K inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)(ab) inserted 30 November 2011 section 36 section 57(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)(d)(i) amended 30 November 2011 section 36 section 57(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)(d)(ia) inserted 30 November 2011 section 36 section 57(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)(g) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
94L: Payment by the Crown to TSO provider
1: The Crown must pay to the TSO provider, not later than 30 working days after the date that the final TSO cost calculation determination is publicly notified,—
a: the amount set out in the final TSO cost calculation determination in accordance with section 94K(1)(d)
b: the amount set out in the final TSO cost calculation determination in accordance with section 94K(1)(e)
2: If the Crown does not pay the total of the amounts referred to in subsection (1) on or before the due date, the Crown must pay the TSO provider interest on the unpaid amount at the 90-day bank bill rate (as at 31 working days after the date on which the final cost calculation determination is publicly notified) plus 5% for the period from the time the amount was due until the time at which it is paid. Section 94L inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
3: Remedies and miscellaneous
Remedies
95: Application of sections 96 to 98 to TSO instruments that are company constitutions
Section 95 repealed 30 November 2011 section 36 section 58 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
96: Power of court to grant relief in respect of TSO instrument
1: If, on the application of the Crown, it appears to the High Court that a TSO provider
a: an order to—
i: restrain the TSO provider
ii: require the TSO provider
iii: require the TSO provider
b: an interim order.
2: In any proceeding under this section, the Crown, on the order of the court, may obtain discovery and administer interrogatories.
3: The court may at any time rescind or vary an order made under this section. Section 96(1) amended 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006 Section 96(1)(a)(i) amended 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006 Section 96(1)(a)(ii) amended 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006 Section 96(1)(a)(iii) amended 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006
97: Court must take public interest into account
In deciding whether to make an order under section 96
98: Certain matters not to prevent making of order under section 96
None of the following prevents the court from making an order under section 96
a: the fact that any benefit or advantage that the TSO provider
b: the fact that services are provided under the TSO instrument to a person other than, or in addition to, the Crown. Section 98(a) amended 22 December 2006 section 48 Telecommunications Amendment Act (No 2) 2006
99: Amounts identifying particular TSOs in invoices not permitted
Section 99 repealed 1 July 2011 section 16 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Miscellaneous
100: Right of appeal to High Court
1: The following persons and (as applicable) the Crown may appeal to the High Court against the following matters:
a: a liable person, against a determination of the Commission, in relation to that person, of the matter referred to in section 88(a)
b: a TSO provider, against a direction of the Commission under section 94A(1) 94B(3)
c: a liable person, TSO provider, or the Crown, against a determination of the Commission in respect of a matter referred to in section 94K(1)(a) to (g)
2: An appeal under subsection (1) may be on a question of law only.
3: If an appeal or judicial review proceedings are commenced about a liability allocation determination, TSO cost calculation determination, or direction under section 94A(1)
4: To avoid doubt, the obligations to pay money imposed by sections 89 94L
5: TSO provider Section 100 substituted 1 July 2011 section 17 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
100A: Procedure for determinations
For a determination made under this Part, the Commission—
a: is not bound by technicalities, legal forms, or rules of evidence:
b: may inform itself of any matter relevant to the determination in any way it thinks appropriate:
c: must consider all submissions made in relation to the determination and all information and opinions presented or expressed at any conference in relation to the determination. Section 100A inserted 22 December 2006 section 50 Telecommunications Amendment Act (No 2) 2006
100B: Commission must include information about deemed TSO instrument in TSO cost calculation determinations
1: The Commission must include the information specified in subsection (2) in a—
a: draft TSO cost calculation determination under section 94F
b: final TSO cost calculation determination under section 94J
2: The information referred to in subsection (1) is as follows:
a: the name, location, and limits of each geographical area within which the TSO provider supplies the service under the deemed TSO instrument; and
b: the number of subscriber lines for that service in each geographical area; and
c: the number of those subscriber lines for which—
i: the revenue attributed by the Commission is greater than, or equal to, the respective cost attributed; and
ii: the revenue attributed by the Commission is less than the respective cost attributed; and
d: the net cost of the deemed TSO instrument in each geographical area; and
e: any related information that is necessary to assist in understanding the information specified in paragraphs (a) to (d).
3: The geographical areas referred to in subsection (2) must correspond to the areas that the Commission has identified in assessing, for the purpose of calculating the TSO net cost, the commercial viability of supplying the service to end-users Section 100B inserted 22 December 2006 section 50 Telecommunications Amendment Act (No 2) 2006 Section 100B(1)(a) amended 1 July 2011 section 18(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 100B(1)(b) amended 1 July 2011 section 18(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 100B(3) amended 1 July 2011 section 18(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
100BA: Commission must include information about spending of TSO charges paid in relation to deemed TSO instrument
1: The Commission must include the information specified in subsection (2) in—
a: a draft TSO cost calculation determination under section 94F
b: a final TSO cost calculation determination under section 94J
2: The information referred to in subsection (1) is the amount of the total TSO charges most recently received by the TSO provider (if any), that the TSO provider has spent on each of the following, and details of that expenditure:
a: TSO-related infrastructure:
b: TSO-related operational costs:
c: any other items.
3: For the purpose of enabling the Commission to comply with subsection (1), the Commission may require the TSO provider to prepare and provide information about the spending of the TSO charges most recently received by the TSO provider.
4: The TSO provider must prepare and provide any information required under subsection (3) in accordance with the Commission's requirements. Section 100BA inserted 1 July 2011 section 19 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
100C: Duties of Commission in complying with
sections 100B and 100BA
1: In complying with section 100B
a: the information to be included in a draft or final TSO cost calculation determination is at its lowest level of aggregation (as determined by the Commission); and
b: satisfactory provision exists to protect the confidentiality of any information that—
i: the person who supplied it has advised is confidential; or
ii: may reasonably be regarded as confidential; and
c: the inclusion of that information does not constitute an action that is an interference with the privacy of an individual under section 69
2: However, if the Commission considers that compliance with subsection (1)(a) will, or is likely to, prejudice compliance with subsection (1)(b) or (c), the Commission—
a: may aggregate the information before it is included under section 100B
b: may do so in any manner that it thinks fit.
3: In complying with section 100BA Section 100C inserted 22 December 2006 section 50 Telecommunications Amendment Act (No 2) 2006 Section 100C heading amended 1 July 2011 section 20(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 100C(1)(c) amended 1 December 2020 section 217 Privacy Act 2020 Section 100C(3) added 1 July 2011 section 20(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
101: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that—
a: determine the amount of the minimum telecommunications revenue for the purposes of section 80
b: prescribe the information that must be provided to the Commission under section 83(1)(a)
c: provide for the appointment of auditors who may make an auditor's report under section 83(1)(b) 94D(1)(b)
d: prescribe requirements to which section 94D(1)(b)(i)
da: prescribe requirements to which section 94EA(2)(b)(i)
e: provide for any methods for all or any of the following:
i: preparing a draft determination of the amount of qualified revenue referred to in section 85(1)(a)
ii: determining the amount of qualified revenue referred to in section 88(a)
iii: calculating the net cost under section 94D
iiia: calculating the net revenue under section 94EA
iv: preparing a draft determination of the net cost referred to in section 94G(a)
v: determining the net cost referred to in section 94K(1)(a)
2: The Minister must not make a recommendation under subsection (1)(b) to (e) unless—
a: the Commission has consulted every liable person; and
b: the Commission has recommended that the regulations be made.
3: The Minister must not recommend the making of regulations under subsection (1)(a) unless the Minister is satisfied that, if the regulations were made, the minimum telecommunications revenue under those regulations would not exceed the maximum telecommunications revenue threshold.
4: In this section, maximum telecommunications revenue threshold The following table is small and contains a formula. a × c b where— a is the CPI index number for the last quarter before the Minister's recommendation would be made b is the CPI index number for the last quarter before the date of commencement of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 c is $10 million.
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 101 substituted 1 July 2011 section 21 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 101(1)(da) inserted 30 November 2011 section 36 section 59(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 101(1)(e)(iiia) inserted 30 November 2011 section 36 section 59(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 101(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
101A: Review of local service TSO arrangements
Section 101A repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Networks
1: Network operators and networks generally
Declarations of network operator status
102: Persons declared to be network operators
1: The purpose of this section and sections 103 to 105
2: A person may apply to the Minister to be declared a network operator for the purposes of this Act or any provisions of this Act.
3: For the purposes of this section and sections 103 to 105
a: one of them is a body corporate of which the others are subsidiaries; or
b: all of them are subsidiaries of the same body corporate; or
c: all of them are associates of each other; or
d: one of them owns or controls shares that in the aggregate carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of the others; or
e: a third person owns or controls shares in each of them that carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of each of them.
4: For the purposes of subsection (3)(c), a body corporate is an associate of another if that body corporate is able, whether directly or indirectly, to exert a substantial degree of influence over the activities of the other.
5: A body corporate is not able to exert a substantial degree of influence over another body corporate for the purposes of subsection (4) just because—
a: those bodies corporate are in competition in the same market; or
b: one of them supplies goods or services to the other. 1987 No 116 ss 2(2) 2A(1) Section 102(1) amended 13 November 2018 section 39(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 102(3) substituted 22 December 2006 section 52 Telecommunications Amendment Act (No 2) 2006 Section 102(4) added 22 December 2006 section 52 Telecommunications Amendment Act (No 2) 2006 Section 102(5) added 22 December 2006 section 52 Telecommunications Amendment Act (No 2) 2006
103: Ministerial requirements for declaration
The Minister must declare an applicant to be a network operator for the purposes of this Act or any provisions of this Act if the Minister is satisfied that a declaration is necessary to enable the applicant to commence or carry on a business providing—
a: facilities for telecommunication (other than facilities used exclusively for broadcasting)
b: facilities for broadcasting to 500 or more other persons that enable programmes to be transmitted along a line or lines to each of those persons. 1987 No 116 s 2A(2) Section 103(a) amended 13 November 2018 section 39(5) Telecommunications (New Regulatory Framework) Amendment Act 2018
104: When declaration must be revoked
The Minister must revoke a declaration if the Minister is satisfied that a network operator has ceased to provide the facilities listed in section 103 1987 No 116 s 2A(4)
105: Declaration made or revoked by notice
1: A declaration is made by notice Spark
1A: A declaration may be revoked by notice Spark
2: A notice making or revoking a declaration is secondary legislation ( see Part 3 1987 No 116 s 2A(3), (5) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)(a) cl 14 Presentation 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 105 heading amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 105(1) substituted 30 November 2011 section 36 section 63(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 105(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 105(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 105(1A) inserted 30 November 2011 section 36 section 63(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 105(1A) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 105(1A) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 105(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Connection to network
106: Operator must agree to connection to network
1: Except as provided in Part 2
2: Nothing in subsection (1) limits the Commerce Act 1986
3: Subsection (1) is subject to sections 107 108
4: In subsection (1) and sections 107 108 operator
a: a network operator; or
b: any other person who provides a telecommunications service by means of a PTN 1987 No 116 s 6(1), (2) Section 106(4)(b) amended 1 July 2011 section 26(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
107: When operator must not agree to connection to network
1: An operator must not agree to the connection of a telephone analyser to a network that is owned or operated by an operator unless the connection is for 1 or more of the following purposes:
a: to enable a person to whom the operator provides telecommunications services to obtain call associated data that relates to telecommunications between the person and other persons:
b: to maintain the network:
c: to detect, investigate, or prosecute any offence against section 112
2: In subsection (1), telephone analyser call associated data section 2(1) 1987 No 116 s 6(2A) Section 107(1)(c) amended 13 November 2018 section 39(6) Telecommunications (New Regulatory Framework) Amendment Act 2018
108: When operator must not refuse to agree to connection to network
1: An operator must not refuse to agree to the connection of any equipment to a network, or to anything connected to a network, that is owned or operated by the operator if the only reason for the refusal is that the operator considers that the equipment does not conform with the operator's standards for connection of that equipment.
2: Subsection (1) applies only if—
a: the network operator has set either a standard that applies, or standards that apply, ( applicable standards
b: those applicable standards have been published in accordance with any regulations made under section 109
c: a relevant competent conformity assessment body has, in accordance with any regulations made under section 109
3: In subsection (2) and section 109 relevant competent conformity assessment body
109: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: providing for procedures and requirements relating to the publication of applicable standards under section 108(2)(b)
b: providing for procedures and requirements that relate to recognising a body as a competent conformity assessment body for the purposes of assessing compliance with applicable standards under section 108(2)(c)
c: providing for procedures and requirements that relate to assessing compliance with applicable standards under section 108(2)(c)
d: providing for any other matters contemplated by section 108
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 109(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
110: Actions for damages for contravention of section 106
1: Every person is liable for damages who—
a: contravenes section 106
b: induces by threats, promises, or otherwise, the contravention of that section:
c: is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention of that section.
2: An action under subsection (1) may be commenced at any time within 3 years from the time when the cause of action arose. 1987 No 116 s 20D
111: Injunctions may be granted by High Court for contravention of section 106
1: The High Court may, on the application of a network operator, grant an injunction restraining a person from engaging in conduct that constitutes, or would constitute, any of the following:
a: a contravention of, or an attempt to contravene, section 106
b: inducing, or attempting to induce, any other person, whether by threats, promises, or otherwise, to contravene that section:
c: being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of that section.
2: The High Court may, at any time, rescind or vary an injunction granted under this section. 1987 No 116 s 20C Information requirement Heading inserted 22 December 2006 section 53 Telecommunications Amendment Act (No 2) 2006
111A: Information about interconnection arrangements
1: A major supplier must make publicly available a copy of—
a: the procedures that apply to interconnection with a PTN
b: all the applicable terms and conditions of supply for interconnection with that PTN
2: In this section, major supplier
a: means Spark
b: includes a person who is declared by the Governor-General, by Order in Council made on the recommendation of the Minister, to be a major supplier for the purposes of this section.
3: The Minister must not make a recommendation under subsection (2)(b) unless the Minister is satisfied that the proposed order to which the recommendation relates is necessary to facilitate New Zealand's compliance with its international obligations.
4: An order under subsection (2)(b) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication 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 111A inserted 22 December 2006 section 53 Telecommunications Amendment Act (No 2) 2006 Section 111A(1)(a) amended 1 July 2011 section 26(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 111A(1)(b) amended 1 July 2011 section 26(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 111A(2)(a) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 111A(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Misuse of network
112: Misuse of telephone device
1: Every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient.
2: Every person commits an offence who—
a: uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient; or
b: in using a telecommunications device, knowingly gives any fictitious order, instruction, or message.
3: Every person who commits an offence against subsection (1) or subsection (2) is liable on 1987 No 116 s 8 Section 112(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
113: Indecent telephone calls for pecuniary gain
Section 113 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
114: Interception of telecommunications for authorised purposes
Section 114 repealed 1 October 2003 section 35 Crimes Amendment Act 2003
115: Offence to use or disclose certain information for unauthorised purposes
Section 115 repealed 1 October 2003 section 35 Crimes Amendment Act 2003 Evidence
116: Computer records
1: A document certified by an employee of a network operator to be a computer record of a telecommunication and to have been produced in the ordinary course of producing those computer records is prima facie evidence—
a: that the telecommunication was made; and
b: of the originating number, the number called, the date and time of the telecommunication, and the duration and cost of the telecommunication, to the extent that those items are contained in the computer record.
2: For the purposes of this section, computer record 1987 No 116 s 9(2), (3)
2: Maintenance of networks
Preliminary
117: Meaning of maintenance
1: In this subpart, maintenance
a: any repairs and any other activities for the purpose of maintaining, or that have the effect of maintaining, lines or works; and
b: the carrying out of any replacement or upgrade of lines or works as long as the land will not be injuriously affected as a result of the replacement or upgrade.
2: Subsection (1) does not have the effect of making an activity of a kind referred to in that subsection a permitted use under a district plan or regional plan under the Resource Management Act 1991 or a development plan under the Urban Development Act 2020 Section 117(2) amended 7 August 2020 section 300 Urban Development Act 2020
118: Meaning of evidence of authority
In this subpart, evidence of authority
a: the full name of the officer, employee, or agent to whom it is issued; and
b: the name of the network operator; and
c: the date on which the written authority is issued; and
d: the date (if any) on which the written authority expires; and
e: particulars of the powers of the network operator that the officer, employee, or agent is authorised to exercise; and
f: particulars of conditions (if any) imposed on the officer, employee, or agent by the network operator.
118A: Notices under this subpart
1: Any notice that is required to be given to any person under this subpart must be in writing.
2: To avoid doubt, subsection (1) does not apply to notices given in any proceedings in a court. Section 118A inserted 1 July 2011 section 26(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
119: Criteria for setting reasonable conditions
1: In setting, varying, or revoking reasonable conditions under section 135(2) section 142(2)(b)
a: the safe and efficient flow of traffic (whether pedestrian or vehicular):
b: the health and safety of any person who is, or class of persons who are, likely to be directly affected by the work on the road:
c: the need to lessen the damage that is likely to be caused to property (including structural integrity of the roads) as a result of work on the road:
d: the compensation that may be payable under section 154
e: the need to lessen disruption to the local community (including businesses):
f: the co-ordination of installation of other networks:
g: the co-ordination with road construction work by the local authority or other person who has jurisdiction over that road:
h: the need of a network operator to establish a telecommunications network in a timely manner.
2: Nothing in subsection (1) limits a local authority's or other person's ability to impose reasonable conditions under section 135(2) section 142(2)(b)
3: However, a condition requiring a network operator to increase amenity values (rather than to merely maintain them) must not be imposed unless the work to be done is in an area identified in a district plan as an area in relation to which, under the district plan, there are particular considerations, or rules or requirements, relating to amenity values.
4: If the cost to the network operator of complying with a condition referred to in subsection (3) is higher than it would have been if there were not a requirement to increase amenity values, then the person imposing the condition must pay that increase in cost.
5: In subsection (3), a reference to a district plan includes a reference to a development plan under the Urban Development Act 2020 Section 119(3) added 6 August 2010 section 5 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 119(4) added 6 August 2010 section 5 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 119(5) inserted 7 August 2020 section 300 Urban Development Act 2020 Rights of entry to land in respect of lines
120: Application to District Court
1: If a network operator wishes to enter land for the purpose of constructing, erecting, laying, or maintaining any line, the network operator may apply to the District Court section 121
2: The network operator must give the owner and the occupier of the land at least 10 working days' notice of the operator's intention to apply to the District Court under subsection (1). 1987 No 116 s 11(1) Section 120(1) amended 1 March 2017 section 261 District Court Act 2016
121: Court order
1: If the District Court is satisfied that the requirements set out in subsection (2) have been met, it may make an order authorising the network operator to—
a: enter the land at reasonable times, with or without any person who is, or anything that is, reasonably necessary for the construction, erection, laying, or maintenance of a line:
b: perform work that is reasonably necessary to construct, erect, lay, or maintain a line.
2: The requirements that must be met are as follows:
a: the construction, erection, laying, or maintenance of the line is necessary for the purposes of telecommunications:
b: the network operator has taken all reasonable steps to negotiate an agreement for entry:
c: in relation to the construction, erection, or laying of a line, no practical alternative route exists. 1987 No 116 s 11(2)
122: Contents of court order
Every order made under section 121
a: how and when entry may be made; and
b: the specific powers intended to be exercised; and
c: any other conditions (including conditions relating to the payment of compensation) that the District Court thinks fit to impose. 1987 No 116 s 11(3)
123: Service of order
Before exercising any powers authorised by an order made under section 121 1987 No 116 s 11(4)
124: Production of order
Every officer, employee, or agent of a network operator acting under an order made under section 121
a: on initial entry; and
b: after the initial entry, on request. 1987 No 116 s 11(5) Rights of entry to land in respect of existing works and existing lines
125: Rights of entry to land
Subject to section 126
a: enter land for the purpose of gaining access to any existing works or existing lines owned by the operator; and
b: perform any act or operation necessary for the purpose of inspecting, maintaining, or repairing those works or lines. 1987 No 116 s 12(1)
126: Conditions of entry to land
1: The power to enter land conferred by section 125
a: entry to the land must only be made by an officer, employee, or agent of the network operator authorised by it in writing:
b: reasonable notice of the intention to enter must be given to the owner and to the occupier of the land:
c: entry must be made at reasonable times:
d: the person entering must produce evidence of his or her authority and identity—
i: on initial entry; and
ii: after the initial entry, on request.
2: The conditions in subsection (1) do not apply if entry on the land is—
a: necessary in circumstances of probable danger to life or property; or
b: immediately necessary to maintain the continuity or safety of the supply of telecommunications.
3: If subsection (2) applies, the network operator must, as soon as practicable after entry on the land, give notice to the owner and to the occupier of the land of the fact of the entry on the land and of what was done. 1987 No 116 s 12(3)
127: Evidentiary presumption
A certificate under the seal of a network operator containing a statement that a specified instrument, machinery, engine, structure, or other work was erected or constructed before 1 January 1988 under the authority of the Post Office Act 1959 1987 No 116 s 12(2) Interference with lines
128: Request for removal or trimming of trees
If a tree, shrub, or plant on any land or road interferes with, or is likely to interfere with, a line, the network operator who uses the line may request the owner or occupier of the land, or local authority or other person who has control of the road, to remove or trim the tree, shrub, or plant. 1987 No 116 s 13(1)
129: Application to District Court
1: If an owner, occupier, a local authority, or other person fails to comply with a request made under section 128
2: The network operator must give the owner, occupier, local authority, or other person who fails to comply with the request at least 10 working days' notice of the operator's intention to apply to the District Court under subsection (1). 1987 No 116 s 13(2)
130: Court order
On being satisfied that a tree, shrub, or plant on land interferes with, or is likely to interfere with, a line, the District Court may make an order on any terms and conditions (including those relating to notice and time of removal or trimming) that the court thinks fit. 1987 No 116 s 13(2)
131: Costs of removal or trimming of trees
If a network operator removes or trims a tree, shrub, or plant on any land or road under the authority of an order made under section 130 section 129(2) 1987 No 116 s 13(3)
132: Removal of trees, etc, in emergency
1: If a tree, shrub, or plant on any land or road is, or is likely to, cause imminent danger to, or serious interference with, a line, the network operator may—
a: enter the land or road where the tree, shrub, or plant is rooted or overhangs; and
b: do work in respect of the tree, shrub, or plant that is necessary to remove the danger or serious interference, or likely danger or serious interference.
2: The network operator must, if it is possible in the circumstances, notify the occupier of the land, or the local authority or other person who has control of the road, as the case may be, of the operator's intention to enter the land or road and carry out work under subsection (1).
3: A network operator who is unable to give notice to the relevant persons under subsection (2) must, as soon as practicable after entry on the land, give notice to the relevant persons of the fact of the entry on the land and of what was done. 1987 No 116 s 14(1)
133: Production of authority
Every officer, employee, or agent of a network operator who enters land or a road under section 132
a: carry evidence of his or her authority and identity, which must be produced on request; or
b: work under the immediate control of a person who holds evidence of that person's authority and identity, which must be produced if requested. 1987 No 116 s 14(2)
134: Costs of removal of trees, etc, in emergency
If a network operator removes or trims a tree, shrub, or plant on any land or road under section 132 1987 No 116 s 14(3) Lines or wireless works Heading amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
135: Construction or repair of lines
or wireless works
1: Except as provided in subsection (2), a network operator may—
a: construct, place, and maintain lines or wireless works
b: for any of those purposes, open or break up any road, and alter the position of any pipe (not being a main) for the supply of water or gas; and
c: alter, repair, or remove those lines or wireless works or wireless works
2: A network operator must exercise the powers contained in subsection (1) in accordance with any reasonable conditions that the local authority or other person who has jurisdiction over that road requires. 1987 No 116 s 15 Section 135 heading amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 135(1)(a) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 135(1)(c) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
136: Notice requirement
1: Except as provided in section 139
a: the local authority or other person who has jurisdiction over the road; and
b: any utility operator (as defined in section 4 Utilities Access Act 2010
2: Every notice must specify the location of the proposed work, the nature of the work to be carried out, and the reasons for it. 1987 No 116 s 15A(1), (2) Section 136(1) substituted 6 August 2010 section 6 Infrastructure (Amendments Relating to Utilities Access) Act 2010
137: Network operator to be notified of conditions
Not later than 15 section 135(2) 1987 No 116 s 15A(3) Section 137 amended 6 August 2010 section 7 Infrastructure (Amendments Relating to Utilities Access) Act 2010
138: Failure to notify conditions
If a local authority or other person who has jurisdiction over the road fails to notify the network operator of the conditions imposed under section 135(2) 15-working day section 137 1987 No 116 s 15A(4) Section 138 amended 6 August 2010 section 8 Infrastructure (Amendments Relating to Utilities Access) Act 2010
139: Urgency
If work is urgent and necessary because of any defective equipment, or other emergency, the network operator—
a: is excused from complying with the requirements of section 136(1)
b: must give the information required by section 136(2) 1987 No 116 s 15A(5)
140: Offence to not comply with any of sections 135, 136, and 139
1: A network operator who fails to comply with any of sections 135 136 139
2: A network operator who commits an offence against subsection (1) is liable on
3: In addition to any fine imposed under subsection (2), a court may make any order relating to compensation that it thinks fit. 1987 No 116 s 15B Section 140(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
141: Appeals by network operators to District Court
1: A network operator may appeal to the District Court section 135(2)
2: An appeal must be made not later than 45 working days after the date of notification of the conditions imposed or within any further time that the District Court may allow.
3: In its determination of any appeal, the District Court
4: The decision of the District Court 1987 No 116 ss 15C 15D Section 141(1) amended 1 March 2017 section 261 District Court Act 2016 Section 141(3) amended 1 March 2017 section 261 District Court Act 2016 Section 141(4) amended 1 March 2017 section 261 District Court Act 2016 Telephone cabinets, etc, on roads
142: Construction, etc, of telephone cabinets or other similar appliances
1: Subject to subsection (2), a network operator may construct, place, and maintain public telephone cabinets, distribution cabinets, or any other similar appliances on a road.
2: A network operator must—
a: give notice of its intention to place a cabinet or other appliance on the road to—
i: the local authority or other person who has jurisdiction over the road; and
ii: any utility operator (as defined in section 4
b: comply with any reasonable conditions that are imposed by the local authority or other person who has jurisdiction over that road on which the cabinet or appliance is to be placed; and
c: not intentionally place the cabinet or appliance on the road so that it interferes with the ordinary traffic.
3: Every notice under subsection (2)(a) must specify where the cabinet or appliance is to be placed on the road and the reasons for it. Section 142(2)(a) substituted 6 August 2010 section 9 Infrastructure (Amendments Relating to Utilities Access) Act 2010
143: Network operator to be notified of conditions
Not later than 15 section 142 Section 143 amended 6 August 2010 section 10 Infrastructure (Amendments Relating to Utilities Access) Act 2010
144: Failure to notify conditions
If a local authority or other person who has jurisdiction over a road fails to notify the network operator of the conditions imposed under section 142(2)(b) 15-working day section 143 Section 144 amended 6 August 2010 section 11 Infrastructure (Amendments Relating to Utilities Access) Act 2010
145: Urgency
If the telephone cabinet or appliance must be placed on a road urgently and it is necessary because of any defective equipment or other emergency, the network operator—
a: is excused from complying with the requirements of section 142(3)
b: must give the information required by section 142(3)
146: Offence not to comply with section 142 or section 145
1: A network operator who fails to comply with section 142 section 145
2: A network operator who commits an offence against subsection (1) is liable on
3: In addition to any fine imposed under subsection (2), a court may make any order relating to compensation that it thinks fit. Section 146(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
147: Appeals by network operators to District Court
1: A network operator may appeal to the District Court section 142(2)(b)
2: An appeal must be made not later than 45 working days after the date of notification of the conditions imposed or within any further time that the District Court may allow.
3: In its determination of any appeal, the District Court
4: The decision of the District Court Section 147(1) amended 1 March 2017 section 261 District Court Act 2016 Section 147(3) amended 1 March 2017 section 261 District Court Act 2016 Section 147(4) amended 1 March 2017 section 261 District Court Act 2016 Local authority, etc, requiring work to be done Heading inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010
147A: Local authority, etc, may require lines, etc, to be moved
1: Where a network operator owns lines, cabinets, wireless works, wireless works,
2: If the network operator refuses or fails, within a reasonable period, to do the work required, the person requiring the work may do the work or have it done by some other person.
3: Before doing work as permitted by subsection (2), the person requiring the work must give notice to the network operator at least 15 working days before the work commences. 1992 No 122 s 32 1992 No 124 s 33 Section 147A inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 147A(1) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
147B: Cost of work required under section 147A
1: The reasonable cost of all work required to be done under section 147A
2: However, the cost of the work must be paid by the network operator if the reason that the work is required is that the lines, cabinets, wireless works,
a: were constructed contrary to any of the following:
i: this Act or any regulations made under section 157
ii: the Telecommunications (Residual Provisions) Act 1987:
iii: the Local Government Act 1974 Local Government Act 2002
iv: the Public Works Act 1981
v: any local or private Act:
vi: any regulations made under any of the enactments referred to in subparagraphs (ii) to (v); or
b: are in a dangerous or unsafe condition.
3: A person that requires work to be done under section 147A
4: The following provisions apply if the person requiring the work is the New Zealand Transport Agency or the agent of the Minister of Transport:
a: the cost of all lines, cabinets, wireless works,
b: if, as a consequence of the requirement, the network operator elects to fix or install any lines, cabinets, wireless works,
c: if, as a consequence of the requirement, the network operator relocates the lines, cabinets, wireless works, wireless works,
d: the costs referred to in paragraph (c) are—
i: what it would have cost to relocate and reconstruct the lines, cabinets, wireless works,
A: any restrictions or conditions imposed by or under any enactment in relation to the relocation and reconstruction; and
B: the location of the original works and the alternatives reasonably available to the network operator:
ii: the actual cost of the relocation and reconstruction (excluding any costs to which paragraph (a) applies).
5: Subsections (1) to (4) apply subject to any agreement between the person requiring the work and the network operator.
6: The amount of payment required under this section must be determined—
a: by agreement between the person liable for the payment and the person to whom it is payable; or
b: failing such agreement, by arbitration under the Arbitration Act 1996, with 1 arbitrator to be appointed by each party and an umpire to be appointed by those arbitrators before entering upon their reference. 1992 No 122 s 33 1992 No 124 s 34 Section 147B inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 147B(2) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)(a) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)(b) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)(c) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)(d)(i) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
147C: Relationship with section 54 of Government Roading Powers Act 1989
Sections 147A 147B section 54 1992 No 122 s 34 1992 No 124 s 35 Section 147C inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Miscellaneous
148: Alteration to line
or wireless works
1: If an owner of land or some other person requires a line, wireless works, or other
2: A network operator is not entitled to be paid the cost of any improvement to a line that is, or wireless works or other works 1987 No 116 s 16 Section 148 heading amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 148(1) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 148(2) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
149: Lines must not interfere with public traffic
1: A network operator must not intentionally place the wires of a line so that they interfere with the lawful traffic on a road.
2: However, wires of a line do not interfere with the lawful traffic on the road if the wires are placed at a height of 5.5 metres or more above the surface of the road where the wires cross a public road, or at a height of 4.25 metres or more elsewhere. 1987 No 116 s 17(1)
150: Lines over navigable waters
A network operator must not intentionally place a line so that it interferes with the navigation of navigable waters. 1987 No 116 s 17(2)
151: Network operator must avoid interference with traffic
A network operator, in maintaining, repairing, altering, or removing a line that crosses or is along a road, or that is over or under navigable waters, must not cause unnecessary or avoidable interference to the traffic on, or to the lawful use of, any road or navigable waters. 1987 No 116 s 17(3)
152: Offence to contravene any of sections 149 to 151
1: A network operator who contravenes any of sections 149 to 151
2: A network operator who commits an offence against subsection (1) is liable on
3: In addition to any fine imposed under subsection (2), a court may make any order relating to compensation that it thinks fit. Section 152(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
153: Charging for access to road reserve
1: Despite anything in this Act or in any other enactment, no local authority or other person who has jurisdiction over any road may require the payment, by or on behalf of a network operator, of any amount of or in the nature of rent in respect of any line, wireless works, or other
2: Nothing in subsection (1) applies in respect of any rate or charge levied under the Local Government (Rating) Act 2002 Section 153(1) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 153(2) amended 13 November 2018 section 41(2) Telecommunications (New Regulatory Framework) Amendment Act 2018
154: Compensation
1: Every person whose property is damaged as a result of the exercise of any of the powers under this subpart is entitled to compensation.
2: The amount of the compensation may be agreed between the network operator and the person concerned or, failing agreement, be determined in the manner provided for by the Public Works Act 1981 1987 No 116 s 19
155: Protection of existing works
1: Any existing works or existing lines owned by a network operator that are fixed to, or installed over or under, land that is not owned by the network operator are deemed to be lawfully fixed or installed, and continue to be lawfully fixed or installed, until the network operator otherwise decides.
2: No person other than the network operator has an interest in any of those works or lines by reason only of having an interest in the land. 1987 No 116 s 20
3: Access to property, involving rights of multiple parties, to deploy fibre optic media and other technology
Subpart 3 replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Preliminary Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155A: Purpose
The purpose of this subpart is to enable more people and businesses to obtain the benefits of fibre-to-the-premises and other technology, within a shorter time frame, by—
a: recognising that, when more than 1 person’s consent is required for an FTTP service provider or a network operator to access a property because each of those persons has some form of legal right in respect of that property, and there are difficulties in obtaining those consents, the process of installing infrastructure (such as fibre optic media) is delayed and opportunities to realise the benefits of that technology are missed; and
b: providing for a tiered system of statutory rights of access—
i: that FTTP service providers and network operators may use to access property and carry out installations in those situations; and
ii: that imposes different requirements for different methods of installation in order to ensure that the requirements are appropriate to the methods and their impact on the property; and
c: providing for a scheme for efficiently and effectively resolving disputes that may arise about rights and obligations under this subpart. Section 155A replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155B: Overview
1: This subpart—
a: provides statutory rights of access that FTTP service providers and network operators may use to access private property that is subject to legal rights of multiple persons in order to install, maintain, repair, and upgrade fibre optic media in circumstances where, but for those rights, the service providers or network operators would need to obtain the consent of more than 1 person (an affected person
b: enables the statutory rights of access to be applied to service providers and network operators in order to install, maintain, repair, or upgrade prescribed other technology ( see sections 155E 155ZO(1)(b)
c: sets out general preconditions for the statutory rights of access to apply, including that the installation does not involve affected persons paying for any costs of the installation ( see section 155J
d: sets out particular preconditions that an FTTP service provider or a network operator must satisfy before exercising the statutory rights, and provides that those preconditions—
i: depend on whether the method that the service provider or network operator intends to use for installing the fibre optic media or prescribed other technology is prescribed as a category 1 installation or category 2 installation:
ii: require the service provider or network operator to give every affected person, and the person who placed the order with a retail provider for the FTTP service to be installed, a preliminary notice of its intention to enter property and carry out a category 1 installation, but do not require it to obtain the consent of any of those persons ( see section 155K
iii: require the service provider or network operator to give every affected person, and the person who placed the order for the FTTP service to be installed, a preliminary notice of its intention to enter a property and carry out a category 2 installation and, unless any affected person objects within the time allowed, deem each affected person to have consented to the entry and installation ( see sections 155L to 155P
iv: in the case of a body corporate administered property, require the service provider or network operator to satisfy the preconditions for a category 2 installation, regardless of whether the installation is a category 1 or a category 2 installation ( see sections 155Q to 155X
e: provides for the grounds on which an affected person may object to a category 2 installation and, for body corporate administered properties, also provides additional grounds for objection ( see sections 155N 155T
f: in the case of a body corporate administered property,—
i: provides a separate statutory right of access for FTTP service providers and network operators to enter the property in order to design installations ( see section 155Q
ii: requires the body corporate to give to all owners of flats and units forming part of the property the body corporate’s reasons for objecting to an installation ( see section 155W
g: provides for how FTTP service providers and network operators must exercise their statutory rights of access ( see sections 155Z to 155ZB
h: for non-prescribed methods of installation, confirms that the rights that an FTTP service provider or a network operator has to enter property and carry out work for the purposes of the installation are the rights (if any) that it has under the general law and any relevant enactments ( see section 155ZC
i: provides for statutory rights of access for FTTP service providers and network operators to re-enter property for the purpose of inspecting, maintaining, repairing, or upgrading all or part of a fibre-to-the premises access network if certain preconditions are met ( see sections 155ZD 155ZE
j: provides for a dispute resolution scheme to be established for resolving disputes relating to the statutory rights of access given by this subpart ( see sections 155ZG to 155ZN Schedule 3C
k: provides for methods of installation to be prescribed as category 1 or category 2 installations for the purposes of the subpart, depending on the impact that the method of installation may have on the property, and for other matters to be prescribed by regulations for the purposes specified in section 155ZO
l: grants the body corporate of a unit title development an exemption from the duty to maintain fibre networks installed as part of the UFB initiative (which would otherwise arise under the Unit Titles Act 2010 see section 155ZP
2: This section is a guide only to the general scheme and effect of this subpart. Section 155B replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Statutory right of access to multi-unit complexes Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155C: Status of examples
1: An example used in this subpart is only illustrative of the provision to which it relates. It does not limit the provision.
2: If an example and the provision to which it relates are inconsistent, the provision prevails. Section 155C replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155D: Interpretation
1: In this subpart, unless the context otherwise requires,— affected person
a: means a person whose consent an FTTP service provider or a network operator would, but for this subpart, have to obtain before entering the property or carrying out the installation; and
b: does not include the person who placed the order with a retail provider for the FTTP service to be installed Example
A flat-owning company owns a property comprising a block of 20 flats (and the land on which it is built). It is a company share property. The flats are situated at the end of a driveway. Three easements over the driveway enable residents of the flats as well as 2 neighbours, each living in a stand-alone house on either side of the driveway, to access their respective properties. Mark rents one of the flats. He wants an Ultra-fast Broadband connection, so he obtains his landlord’s agreement to place an order for an FTTP service to be installed to the flat. Mark, acting as agent for the landlord, places the order with a retail provider. To get fibre optic media from the road through to Mark’s flat, the FTTP service provider has to use a method of installation that depends on the service provider being able to carry out work on the driveway. The body corporate and the neighbours on either side of the driveway are the only affected persons in relation to the installation. This is because they are the persons whose consent to the entry and installation would be required at law,— in the case of the body corporate, as the owner of the property in which the installation is to be carried out and also as a person with rights under an easement over the driveway: in the case of each of the 2 neighbours, as persons with rights under their easements over the driveway. Mark’s landlord, on whose behalf Mark is acting when he places the order for an FTTP service, is not an affected person because of the exclusion in paragraph (b). (However, this subpart does expressly provide certain rights for the person with a legal interest in the shared property who has placed the order for the FTTP service to be installed, for example, rights to receive certain notices.) Mark is not an affected person because he does not have any legal interest in the flat and is therefore not a person whose consent the FTTP service provider would have been required to obtain were it not for this subpart. body corporate administered property
a: a company share property:
b: a unit title development:
c: real property owned under another legal structure (if any) that—
i: comprises 2 or more distinct units (for example, within a building) or a group of buildings used communally; and
ii: is administered by a body corporate category 1 installation category 2 installation company share property Part 7A dispute resolution scheme section 155ZG fibre-to-the-premises access network section 156AB FTTP service FTTP service provider installing carrying out an installation maintaining, repairing, or upgrading section 155ZD(5) maintenance section 117 non-prescribed installation prescribed section 155ZO clause 16 prescribed other technology section 155ZO(1)(b) property unit owner Part 7A unit title development section 5(1)
2: In this subpart, unless the context otherwise requires, a reference to a person who places an order for an FTTP service to be installed is a reference to the owner of the property (or, in the case of a body corporate administered property, the unit owner) to which the order relates, regardless of whether the owner places the order himself or herself or authorises another person (for example, a tenant) to place the order as agent on the owner’s behalf. Section 155D replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155D(1) UFB initiative repealed 13 November 2018 section 39(7) Telecommunications (New Regulatory Framework) Amendment Act 2018
155E: References to fibre optic media, etc, include other prescribed technology
In this subpart, unless otherwise stated or the context otherwise requires,—
a: a reference to an installation of fibre optic media or an FTTP service includes a reference to the installation of a prescribed other technology or a service involving the installation of a prescribed other technology; and
b: a reference to a fibre-to-the-premises access network includes a reference to a network—
i: that comprises prescribed other technology; or
ii: of which prescribed other technology forms a part. Section 155E replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Process Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155F: Relationship with other statutory rights of access
This subpart does not limit the statutory rights of access for existing works provided for in sections 120 to 127 Section 155F replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155G: Notices under this subpart
A notice required to be given to a person under this subpart must, unless otherwise stated,—
a: be in writing; and
b: be given in the prescribed manner. Section 155G replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Nature and application of statutory rights of access under subpart Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155H: How long statutory rights of access apply for
The statutory rights of access given by this subpart apply,—
a: in relation to FTTP service providers and network operators installing fibre optic media, for the period starting on the date that this subpart comes into force and ending on 1 January 2025; and
b: in relation to FTTP service providers and network operators exercising certain ongoing rights of access to installed fibre optic media, for the periods specified in section 155ZD
c: in relation to network operators and installations of prescribed other technology, for the prescribed period. Section 155H replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155I: Nature of statutory rights of access
1: The statutory rights of access given by this subpart are that an FTTP service provider or a network operator may, for the purpose of carrying out a category 1 or category 2 installation of fibre optic media as part of a fibre-to-the-premises access network,—
a: enter property at reasonable times, and may enter the property with a person who is, or thing that is, reasonably necessary for the purposes of carrying out the installation; and
b: perform work that is reasonably necessary for the purposes of that installation.
2: The statutory rights of access referred to in subsection (1) apply only if—
a: the general preconditions stated in section 155J
b: the FTTP service provider or network operator has complied with the particular preconditions,—
i: for a category 1 installation, stated in section 155K
ii: for a category 2 installation, stated in section 155L
iii: for an installation in a body corporate administered property (regardless of whether the installation is a category 1 or a category 2 installation), stated in section 155R
3: If an installation is in a property other than a body corporate administered property and involves both category 1 and category 2 methods of installation, the whole installation must be treated as a category 2 installation and (in addition to complying with the general preconditions stated in section 155J section 155L
4: If an installation involves more than 1 method of installation and all methods are prescribed as category 1 methods, the FTTP service provider or network operator must treat the whole installation as a category 1 installation.
5: If an installation involves more than 1 method of installation and all methods are prescribed as category 2 methods, the FTTP service provider or network operator must treat the whole installation as a category 2 installation.
6: A further statutory right of access is given to FTTP service providers and network operators for designing installations in body corporate administered properties ( see section 155Q Section 155I replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Code Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155J: General preconditions for statutory rights of access to apply
1: The general preconditions for the statutory rights of access given by this subpart to apply are that—
a: a person has, after the commencement of this subpart, placed an order with a retail provider for an FTTP service to be installed; and
b: the installation involves 1 or more affected persons; and
c: no affected person is liable to pay for the costs of the installation, or part of those costs, without the affected person’s express agreement; and
d: the FTTP service provider or network operator carrying out the installation is a member of the dispute resolution scheme.
2: In relation to subsection (1)(a), see clauses 2 to 5 section 13 Section 155J replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Particular preconditions for category 1 and category 2 installations (in properties other than body corporate administered properties) Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155K: Particular preconditions before exercising statutory right of access to carry out category 1 installation
1: Before an FTTP service provider or a network operator enters a property and carries out a category 1 installation, the service provider or network operator must first give a preliminary notice to—
a: each affected person; and
b: the person who placed the order with a retail provider for an FTTP service to be installed.
2: The preliminary notice must—
a: be given not less than 5 working days before the service provider or network operator enters the property to carry out the installation; and
b: state when the service provider or network operator is intending to enter the property and carry out the installation; and
c: include a general explanation of what will be involved in carrying out the installation; and
d: identify any access areas that the service provider or network operator may want to use when carrying out the installation; and
e: comply with the prescribed requirements (if any).
3: This section does not apply to a category 1 installation in a body corporate administered property ( see sections 155Q 155R Section 155K replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Consumer complaints system Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155L: Particular preconditions before exercising statutory right of access to carry out category 2 installation
1: Before an FTTP service provider or a network operator enters a property and carries out a category 2 installation under this subpart, the service provider or network operator must—
a: first give a preliminary notice and a high-level design plan of the installation that set out the information described in section 155M
i: each affected person; and
ii: the person who placed the order with a retail provider for the FTTP service to be installed; and
b: not have received an objection under section 155N
2: This section does not apply to a category 2 installation in a body corporate administered property ( see section 155R Section 155L replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155M: Requirements in respect of preliminary notice and design plan for category 2 installations
1: The preliminary notice about a category 2 installation given to each person under section 155L(1)(a)
a: state when the FTTP service provider or network operator is intending to enter the property and carry out the installation; and
b: include a general explanation of what will be involved in carrying out the installation; and
c: identify any access areas that the service provider or network operator may want to use when carrying out the installation; and
d: set out the grounds on which an affected person may object to the FTTP service provider or network operator entering the property and carrying out the installation under this subpart; and
e: state how an affected person may object and the time within which an objection must be made; and
f: comply with the prescribed requirements (if any).
2: The high-level design plan required under section 155L(1)(a)
a: where the installation method (or, if more than 1, where each installation method) is to be used on the property; and
b: where the network equipment (if any) associated with that installation method is proposed to be put. Section 155M replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Objections to exercise of statutory right of access to carry out category 2 installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155N: Grounds and time for objecting to exercise of statutory right of access to carry out category 2 installation
1: An affected person may object to the FTTP service provider or network operator exercising a statutory right of access to enter property and carry out a category 2 installation, on 1 or more of the following grounds:
a: the person disputes ownership of property that the proposed installation will make use of or disturb:
b: the person can demonstrate that the installation will have a materially negative impact on the value of the person’s property:
c: the person can identify ways in which the proposed installation will unreasonably impact on the person’s enjoyment of the property, or worsen an existing problem with the property, other than by having a visual impact alone:
d: the person can demonstrate that the proposed installation will impede the person’s plans for development of the property:
e: the person has an easement over the property affected and can demonstrate that the proposed installation will have an enduring impact on the terms and conditions of that easement:
f: the prescribed grounds (if any).
2: An affected person who wants to object to a network operator exercising a statutory right of access under this section must do so by giving a notice of objection to the FTTP service provider or network operator within 15 working days after receiving the preliminary notice and high-level design plan for the installation under section 155L(1)(a)
3: Nothing in this section, or any other provision of this subpart, affects the right of a person to cancel an order that the person has placed for an FTTP service to be installed. Section 155N inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155O: Effect of objection to exercise of statutory right of access for category 2 installation
1: If the FTTP service provider, network operator, or person who placed the order with a retail provider for the FTTP service to be installed (in each case, person A section 155N
2: If person A refers the dispute to the dispute resolution scheme, the FTTP service provider or network operator has no statutory right of access to enter the property and carry out the installation unless there is a binding resolution of the dispute under the rules of the scheme or an order of the District Court allows it to exercise that right. Section 155O inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155P: Deemed consent to category 2 installation
Each affected person is deemed to have consented to an FTTP service provider or a network operator entering the property and carrying out a category 2 installation if the preconditions in sections 155J 155L Section 155P inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Statutory rights of access to body corporate administered properties Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155Q: Statutory right of access to common areas of body corporate administered properties for designing installations
1: The statutory right of access given by this section applies after a person has placed an order with a retail provider for an FTTP service to be installed in a body corporate administered property.
2: For the purpose of inspecting the property, to design an installation, an FTTP service provider or a network operator—
a: has a statutory right to enter those areas of the property that are owned by the body corporate on behalf of unit owners as common property and that unit owners are able to freely access on a day-to-day basis; and
b: may, with the permission of the body corporate (which must not be unreasonably withheld), enter other areas of the property owned by the body corporate on behalf of unit holders as common property.
3: Before entering any area of the property that is not common property (for example, a person’s unit in a unit title development or a flat or an office in a building owned by a flat or office owning company within the meaning of Part 7A Example
The owner of an apartment on the top floor of a 3-storey apartment building places an order with a retail provider for an FTTP service to be installed. There are 3 external access ways on the building, one running along the back of each floor, and external staircases that link the access ways. Apartment owners can use these access ways and stairs to move between floors. The FTTP service provider wants to find out whether it will be possible to carry out the installation to the apartment using external conduit alone. The access ways and staircases are owned and held by the body corporate of the building as common property and there are no barriers restricting free access to those parts of the building. The FTTP service provider therefore has a statutory right to enter the property and inspect the external access ways and staircases up to the top floor for the purposes of finding out whether it will be possible to use external conduit and to design a suitable installation. Section 155Q inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155R: Particular preconditions before exercising statutory right of access to body corporate administered property for carrying out category 1 and 2 installations
Before an FTTP service provider or a network operator enters a body corporate administered property and carries out a category 1 or a category 2 installation in reliance on a statutory right of access under this subpart, the service provider or network operator must—
a: first give the body corporate a preliminary notice and high-level design plan in accordance with section 155S
b: not have received an objection under section 155T Section 155R inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155S: Requirements in respect of preliminary notice and design plan given to body corporate
1: The preliminary notice and high-level design plan given to a body corporate about a category 1 or category 2 installation under section 155R section 155M
2: However, in complying with section 155M(1)(d) section 155T section 155N Section 155S inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155T: Grounds and time for body corporate objecting to statutory right of access to carry out category 1 or category 2 installation
The body corporate may object to a category 1 or category 2 installation under section 155R section 155N
a: the body corporate considers that the installation will result in unacceptable disruption to the availability of telecommunications services to unit owners during business hours:
b: the body corporate considers that there is a real likelihood the installation as designed would breach 1 or more enactments applying to the body corporate and the property (for example, the Building Code, the Heritage New Zealand Pouhere Taonga Act 2014 Health and Safety at Work Act 2015
c: the body corporate considers that the proposed installation will prevent it from meeting its existing contractual obligations and the body corporate can provide documentation confirming this:
d: any prescribed grounds. Section 155T inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155U: FTTP service provider or network operator may extend time for body corporate objections
1: An FTTP service provider or a network operator may, on its own initiative or at the request of the body corporate, extend the time for a body corporate to object to a category 1 or category 2 installation under section 155T
2: If a body corporate wants to request an extension under this section, it must do so by giving a notice to the FTTP service provider or network operator before the end of the 15-working-day period allowed for objecting under section 155T section 155N
3: An FTTP service provider or a network operator must not unreasonably withhold permission if it receives a request for an extension under subsection (2). Section 155U inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155V: Effect of body corporate objections
If an FTTP service provider or a network operator disputes the validity of a body corporate’s objection under section 155T
a: the service provider or network operator may refer the dispute to the dispute resolution scheme; and
b: section 155O(2) Section 155V inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155W: Requirement for governing bodies to give unit owners reasons for objections
1: A body corporate that objects to an installation under section 155T
2: The notice must—
a: be in writing; and
b: be given not later than 10 working days after the body corporate lodges its objection. Section 155W inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155X: Deemed consent of body corporate to category 1 or category 2 installation
The body corporate of a body corporate administered property is deemed to have consented to an FTTP service provider or a network operator entering the property and carrying out a category 1 or category 2 installation if the preconditions in sections 155J 155R Section 155X inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Exercising statutory rights of access for category 1 and category 2 installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155Y: Application of sections 155Z to 155ZB
Sections 155Z to 155ZB Section 155Y inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155Z: How statutory rights of access must be exercised
1: An FTTP service provider or a network operator must comply with the following requirements when exercising its statutory right of access under this subpart to enter property and carry out an installation:
a: the owner and the occupier of the property must be given reasonable notice of the service provider’s or network operator’s intention to enter the property to start the installation if,—
i: the FTTP service provider or network operator did not, in the preliminary notice given under section 155K 155L 155R
ii: the FTTP service provider or network operator specified a date in that preliminary notice but that date has changed; and
b: from the start to the completion of the installation, entry to the property must be made at reasonable times; and
c: entry to the property must be made only by an officer, employee, or agent of the service provider or network operator authorised by it in writing; and
d: the person authorised to enter must produce evidence of his or her authority and identity if asked to do so.
2: In subsection (1), evidence of authority section 118 Section 155Z inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZA: Restrictions on use of access areas during installations, reinstatements, etc
1: An FTTP service provider or a network operator using an access area to carry out a category 1 or category 2 installation, or to carry out any of the work specified in subsection (2), may restrict or block other persons from using the access area only for—
a: the period or periods of time prescribed (if any); or
b: if no period of time is prescribed, the period of time reasonably necessary to complete the installation or work.
2: The work referred to in subsection (1) is—
a: reinstating property under section 155ZB
b: performing any act or operation under section 155ZD(1)(a)
c: extending an installation under section 155ZD(1)(b)(i)
d: permanently reinstating an area under section 155ZD(1)(b)(ii) Section 155ZA inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZB: Obligation to reinstate property
An FTTP service provider or a network operator must, as soon as practicable after completing an installation, reinstate the area of the property impacted or disturbed by the installation as closely as reasonably possible to its original condition before the installation. Section 155ZB inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Non-prescribed installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZC: Non-prescribed installations
If an FTTP service provider or a network operator wants to enter property and carry out a non-prescribed installation involving 1 or more affected persons,—
a: none of the statutory rights of access under this subpart applies; and
b: the service provider or network operator must obtain rights to enter the property and carry out the installation in accordance with the general law and any relevant enactment applying at the time. Section 155ZC inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Ongoing rights of access to installed fibre infrastructure Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZD: Ongoing rights of access
1: The rights of access given by this section are for an FTTP service provider or a network operator to,—
a: at any time before or after 1 January 2025, for an indefinite period, re-enter property to perform any act or operation necessary for the purpose of inspecting, maintaining, repairing, or upgrading all or any part of a fibre-to-the-premises access network that the service provider or network operator owns and that was installed (whether by the service provider or network operator who owns the fibre-to-the-premises network at the time of the re-entry or a previous owner) at any time after 1 July 2012; and
b: at any time before 1 January 2025, re-enter property to—
i: extend an installation that forms part of a fibre-to-the-premises access network described in paragraph (a) if the extension does not involve a change to the design plan originally provided under this subpart to affected persons and the person who placed the order for the FTTP service to be installed; or
ii: permanently reinstate an area where, at the time of installing, maintaining, repairing, or upgrading part of the fibre-to-the-premises access network, the service provider or network operator reinstated the property on an interim basis only, until a permanent reinstatement could be undertaken.
2: The rights of access apply if—
a: the FTTP service provider or network operator who entered the property and carried out the original installation did so after obtaining the consent of more than 1 person, or entered the property under this subpart; and
b: the FTTP service provider or network operator complies with the conditions in section 155ZE
c: neither of the circumstances in subsection (3) applies.
3: The rights of access given by this section do not apply if—
a: the FTTP service provider or network operator has rights of access equivalent to the rights in subsection (1) under 1 or more easements in respect of the part of the fibre-to-the-premises access network that the service provider wants to access; or
b: the part of the fibre-to-the-premises access network that the FTTP service provider or network operator wants to access was installed in breach of legal rights or obligations in that the service provider or network operator that carried out the original installation—
i: failed to obtain all necessary consents for the installation; or
ii: acted outside the terms of 1 or more consents given by persons in respect of the installation.
4: To avoid doubt, this section applies, with all necessary modifications, to a network operator and prescribed other technology that is installed in reliance on the rights of access given by this subpart.
5: In this section, maintaining, repairing, or upgrading
a: any repairs and any other activities for the purpose of maintaining, or that have the effect of maintaining, part of the fibre-to-the-premises access network; and
b: the carrying out of any replacement or upgrade of existing works, as long as the land will not be injuriously affected as a result of the replacement or upgrade. 1992 No 122 s 23(3) Section 155ZD inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZE: Conditions of ongoing rights
1: The rights of access given by section 155ZD
a: entry to the property must be made only by a person who—
i: is an officer, employee, or agent of the FTTP service provider or network operator; and
ii: is authorised by the service provider or network operator, in writing, to make that entry; and
b: the owner and the occupier of the property must be given reasonable notice of the intention to enter the property; and
c: entry must be made at reasonable times; and
d: the person entering must produce evidence of his or her authority and identity, if asked to do so; and
e: the property must be reinstated as provided in section 155ZB
2: The conditions in subsection (1) do not apply if entry on the land is—
a: necessary in circumstances of probable danger to life or property; or
b: immediately necessary to maintain the continuity or safety of the supply of telecommunications. Section 155ZE inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Protection of interests in installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZF: Protection of interests in installations
1: This section applies to a category 1 or category 2 installation that forms part of a fibre-to-the-premises access network, including any work in relation to or in connection with the installation, if—
a: it is fixed to, or installed under or over, land that is not owned by the FTTP service provider or network operator; and
b: the service provider or network operator carried out the installation after 1 July 2012; and
c: the FTTP service provider or network operator entered the property and carried out the installation after obtaining the required consents or entered the property under this subpart; and
d: neither of the circumstances described in section 155ZD(3)
2: If this section applies,—
a: the installation and work are deemed to be lawfully fixed or installed and continue to be lawfully fixed or installed until the FTTP service provider or network operator decides otherwise; and
b: no person other than the FTTP service provider or network operator has an interest in the installation or work by reason only of having an interest in the land. 2001 No 103 s 155 Section 155ZF inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Dispute resolution process Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZG: Dispute resolution scheme
1: The dispute resolution scheme
a: the approved scheme defined in clause 2
b: the regulated scheme provided for in regulations made under clause 16
2: The procedures for referring disputes to the dispute resolution scheme are as set out in the rules of the dispute resolution scheme. 2010 No 116 s 95 Section 155ZG inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZH: FTTP service providers and network operators exercising statutory access rights must be members of dispute resolution scheme
1: Every FTTP service provider and network operator that relies on a statutory right of access under this subpart (other than an FTTP service provider or network operator and that is referred to in subsection (2)),—
a: in order to install fibre optic media, must be a member of the dispute resolution scheme and must remain a member of the scheme until 1 January 2026:
b: in order to install a prescribed other technology, must be a member of the dispute resolution scheme for the period that—
i: starts on the day after the date on which the order prescribing that technology as other technology for the purposes of this subpart comes into force; and
ii: ends on the date that is 10 years later.
2: Subsection (1) does not apply to an FTTP service provider or network operator that relies only on the statutory rights of access given to them by this subpart for the purpose of performing acts or operations necessary for the purpose of inspecting, maintaining, repairing, or upgrading a fibre-to-the-premises access network.
3: Despite subsection (1), an FTTP service provider or a network operator does not need to be a member of the dispute resolution scheme if the Minister exempts that person by issuing an individual exemption notice in the Gazette
a: identifies the person that is exempt from the obligation to be a member; and
b: gives reasons for the exemption.
4: The Minister may grant an individual exemption to a person only if he or she is satisfied that membership of the dispute resolution scheme by the person is not necessary in order to meet the purpose of the dispute resolution scheme (as set out in clause 1
a: that person has permanently stopped carrying out installations; and
b: all disputes involving that person that have been referred to the scheme (if any) have been dealt with; and
c: it is unlikely that other disputes involving that person are yet to be referred to the scheme.
5: The Minister may amend or revoke an individual exemption by issuing a notice in the Gazette
a: first notifies the exempt person (where possible) of the proposed amendment or revocation and gives the person a reasonable opportunity to comment on the proposal; and
b: is satisfied that the amendment or revocation is necessary or desirable in order to meet the purpose of the dispute resolution scheme.
6: The Ministry must ensure that an up-to-date list of all exemptions is available at all reasonable times on an Internet site maintained by or on behalf of the Ministry.
7: 2010 No 116 s 96 Section 155ZH inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZH(7) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
155ZI: Disputes may be referred to dispute resolution scheme
1: A dispute between the following persons about their rights and obligations under this subpart in relation to an installation may be referred to the dispute resolution scheme by any of the parties to the dispute:
a: a dispute between an FTTP service provider or a network operator and—
i: a person who places an order with a retail provider for an FTTP service to be installed:
ii: the body corporate of a body corporate administered property:
iii: an affected person; and
b: a dispute between a person who places an order with a retail provider for an FTTP service to be installed and an affected person; and
c: a dispute between an FTTP service provider or a network operator and a person affected by a re-entry under section 155ZD(1)(b)
2: Subsection (1)(b) does not apply if the person who places the order with the retail provider is a unit owner or person occupying a unit in a body corporate administered property.
3: Disputes that may be referred to the dispute resolution scheme include disputes about—
a: whether a statutory right of access under this subpart applies for an FTTP service provider or a network operator to enter a property and carry out a proposed installation:
b: the validity of a person’s grounds for objecting to an FTTP service provider or a network operator exercising a statutory right of access under this subpart to carry out a category 2 installation (or, in the case of a body corporate administered property, a category 1 or category 2 installation):
c: whether an FTTP service provider or a network operator has complied with requirements under this subpart when exercising a statutory right of access (including the requirement to reinstate property when an installation is completed):
d: other matters provided for in the rules of the scheme. Example
This example refers to the situation set out in the example in section 155D(1) concerning the meaning given to the term affected person. The method that the FTTP service provider has to use in order to get fibre optic media from the road to Mark’s flat via the driveway is prescribed as a category 2 installation. The FTTP service provider therefore gives the flat-owning company and each of the 2 neighbours a notice and high-level design plan that set out the information required under section 155R. Within 15 working days after receiving the notice, 1 of the neighbours objects, on the grounds that the work involved may worsen a subsidence problem in one corner of that person’s property (section 155N). The body corporate also objects, on the ground that it considers the installation will result in an unacceptable disruption to telephone services, during business hours, for other flat owners (section 155T(a)). The FTTP service provider is unable to reach an agreed settlement with either the neighbour or the body corporate concerning the validity of their objections and therefore refers each dispute to the dispute resolution scheme. After further unsuccessful attempts to settle each dispute, the FTTP service provider requests that a determination be made on each dispute under the rules of the scheme. The person determining the disputes concludes that there are no grounds for the body corporate’s objection. This determination is binding on the FTTP service provider as a member of the scheme (section 155ZJ(2)) but not on the body corporate, which can, within 5 working days of being notified of the determination, appeal against it to the District Court (sections 155ZK and 155ZL). However, the neighbour’s objection is determined to be valid, meaning that the FTTP service provider cannot exercise a statutory right of access to carry out the installation. This is binding on the FTTP service provider and it cannot appeal to the District Court (section 155ZJ(2)). The owner of Mark’s flat, as the person who placed the order for the installation, does not have a right to refer a dispute to the dispute resolution scheme, either in relation to the body corporate’s objection or in relation to the neighbour’s objection (subsection (2) of this section). Any dispute between the owner of Mark’s flat and the body corporate over the body corporate’s objection to the FTTP service provider entering the block of flats and carrying out the installation would be a matter to be resolved in accordance with the relevant provisions (if any) of the owner’s licence and the rules of the body corporate (or, if the flat is part of a unit title development instead of a company share property, in accordance with the provisions of Part 4 of the Unit Titles Act 2010). Mark does not have any right to refer a dispute to the dispute resolution scheme under this section either. He is not the person who placed the order for the installation ( see see Section 155ZI inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZJ: Determinations binding on members and certain other parties
1: This section applies if a dispute is referred to the dispute resolution scheme and a determination is made on the dispute under the rules of the scheme.
2: The determination is binding on each party to the dispute that is a member of the dispute resolution scheme (except to the extent that it may be modified by the District Court under section 155ZM(3)
3: The determination is binding on each party to the dispute who is not a member of the dispute resolution scheme, except if one of those parties lodges an appeal against the determination under section 155ZK Section 155ZJ inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZK: Appeals against determinations
1: A party to the dispute that is not a member of the scheme may, within the time allowed under section 155ZL(1)
2: The court may confirm, modify, or reverse the decision appealed against.
3: The decision of the court on the appeal is binding on all persons named as parties in the determination, and there is no right of appeal against the court’s decision. Section 155ZK inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZL: Procedure on appeal
1: An appeal under section 155ZK
a: an appeal must be brought within 5 working days after the determination appealed against is notified to the party wanting to lodge the appeal, or any further time the court allows on an application made before or after that period ends; and
b: the dispute resolution scheme, as the maker of the determination appealed against, is not entitled to be represented at the hearing of the appeal; and
c: the court on appeal may not refer the determination back to the dispute resolution scheme for any purpose.
2: The court may hear all evidence provided and representations made by or on behalf of any party to the appeal that the court considers relevant to the appeal, whether or not the evidence would be admissible in a court. Section 155ZL inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZM: Compliance with rules, binding settlements, and determinations
1: Members of the dispute resolution scheme and each party to a dispute that is referred to the scheme must comply with the rules of the scheme.
2: On the application of the person responsible for the dispute resolution scheme, the District Court may require a member of the dispute resolution scheme or other person who is a party to a dispute to—
a: comply with the rules of the scheme:
b: comply with the terms of a binding settlement or determination made under the rules of the scheme.
3: If the District Court is satisfied that the terms of a binding settlement or determination are manifestly unreasonable, the court's order under subsection (2)(b) may modify the terms of the binding settlement or determination, but only to the extent that the modification results in a binding settlement or determination that could have been made under the dispute resolution scheme.
4: If an order requiring a member to comply with a binding settlement includes a requirement that the member pay an amount of money to a person, that order (or part of the order) may be enforced as if it were a judgment by the District Court for the payment of a sum of money.
5: A reference in this section to a member includes a reference to a person who was a member of the dispute resolution scheme at the relevant time but is no longer a member at the time of the application or order. 2010 No 116 s 97 Section 155ZM inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZN: Levy for regulated dispute resolution scheme
1: This section applies if the dispute resolution scheme is the regulated scheme.
2: Every FTTP service provider and network operator that relies on a statutory right of access under this subpart (or a prescribed class of those persons) must pay to the Minister in each financial year or part financial year (as the case may require) a prescribed levy.
3: Subsection (2) does not apply to an FTTP service provider or network operator that relies on the statutory rights of access given by section 155ZD(1)(b)
4: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the levy.
5: The levy must be prescribed on the basis that the costs of establishing and operating the dispute resolution scheme should be met fully out of the levy.
6: The Governor-General, in making regulations under this section, has the same powers as those set out in section 11(3)
7: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 155ZN inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZN(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Regulations and exemption Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZO: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with subsections (2) to (4), make regulations for all or any of the following purposes in respect of this subpart:
a: prescribing, for the purposes of section 155G
b: prescribing other technology for the purposes of this subpart:
c: prescribing how long statutory rights of access apply for a prescribed other technology for the purposes of section 155H(c)
d: prescribing requirements for preliminary notices for the purposes of section 155K(2) 155M(1)
e: prescribing methods of installation as category 1 installations (including requirements applying to those installations) for the purposes of this subpart:
f: prescribing methods of installation as category 2 installations (including requirements applying to those installations) for the purposes of this subpart:
g: prescribing grounds on which affected persons may object to category 2 installations for the purposes of section 155N
h: prescribing grounds on which the body corporate of a body corporate administered property may object to a category 1 or category 2 installation for the purposes of section 155T
i: prescribing when grounds for objection apply, do not apply, or apply with modifications:
j: prescribing periods of time for the purposes of section 155ZA
i: different periods of time for each category of installation:
ii: different periods of time for each type of work specified in section 155ZA(2)
iii: different times in the day during which any prescribed period of time applies:
iv: the number of occasions, during any period of time, that an FTTP service provider may restrict or block other persons from using an access area:
k: prescribing fees payable by members of the dispute resolution scheme in respect of any matter relating to disputes under this subpart, or the manner in which such fees may be calculated:
l: prescribing how information may or must be given to, provided to, or served on any person under this subpart and other matters relating to that procedure (including when the information is treated as received or as having been given, provided, or served for the purposes of this subpart and the regulations):
m: providing for any other matters contemplated for this Act, necessary for its administration, or necessary for giving it full effect.
2: Before recommending regulations prescribing other technology under subsection (1)(b), the Minister must—
a: consult the persons or organisations that appear to the Minister to be representative of the interests of those persons likely to be substantially affected by the regulations; and
b: be satisfied that the technology proposed—
i: is to be deployed on a large scale; and
ii: will provide benefits to New Zealand; and
iii: cannot be installed without the consent of multiple parties first being obtained and this requirement is preventing, or is likely to prevent, the benefits to New Zealand of the technology being realised.
3: Before recommending regulations prescribing a method of installation as a category 1 installation under subsection (1)(e), the Minister must be satisfied that the installation will not have any lasting, substantial, physical impact on the property.
4: Before recommending regulations prescribing a method of installation as a category 2 installation under subsection (1)(f), the Minister must be satisfied that—
a: any disruption that the installation may cause for users of the property will be temporary; and
b: any lasting, substantial, physical impact that the installation may have on the property is justifiable in support of the mass market roll-out of a telecommunications network. Examples of category 1 and category 2 installations
Examples of category 1 installations are— an installation that uses existing equipment such as ducts or conduit: an aerial installation: an installation that only disturbs soft surfaces and where those surfaces can easily be restored. Examples of category 2 installations are— micro-trenching where the width of the cut is not more than the prescribed width: an installation that is predominantly below the surface, such as directional drilling, where the physical impact is limited to access points, or entry and exit points, that do not exceed the prescribed size: open trenching where the size of the trench, once reinstated, is not more than the prescribed size.
5: A failure to comply with this section does not affect the validity of the regulations made.
6: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 155ZO inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZO(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
155ZP: Exemption from body corporate duties of repair and maintenance
1: A body corporate is exempted from any obligation to repair and maintain fibre network equipment installed in its complex if that network was installed as part of the UFB initiative.
2: Subsection (1) applies despite—
a: section 138
b: the terms of any licence, lease, or other instrument that, but for this section, would require a body corporate to repair and maintain that equipment. Section 155ZP inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZQ: Relationship to other enactments
The provisions of this subpart do not affect or limit the scope or application of any other enactment regulating acts or omissions in relation to accessing property and installing fibre optic media or other technology, except to the extent that the enactment is inconsistent with, or modified by, this Act. Section 155ZQ inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
156: Notices to be in writing
Section 156 repealed 1 July 2011 section 26(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
4: Right of access to use existing electricity works for telecommunications and deploying fibre optic cable
Subpart 4 inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZR: Purposes
1: The overall purpose of this subpart is to make a significant contribution to the work and personal lives of people residing in rural areas of New Zealand, in particular, by enabling existing electricity infrastructure to be used for deploying fibre optic cable and, by that means,—
a: accelerate the roll-out of fibre-to-the-premises in those areas; and
b: enable access to high-speed communications for businesses, for schools, and for individual purposes, including for accessing health, banking, and other services, and for establishing and maintaining social and support networks.
2: To those ends, the other purposes of this subpart are to—
a: provide owners of existing works (including power poles, overhead lines, and other infrastructure connected with the generation, conversion, transformation, or conveyance of electricity) with a right to enter rural and other land on which those existing works are situated and use the works for the purposes of deploying, maintaining, and upgrading fibre optic cable for delivering telecommunications services; and
b: ensure that the owners of the existing works provide the owners of the land on which those works are situated with direct benefits to offset the impact of the right of entry on the landowner’s own property rights; and
c: ensure that owners of existing works and third parties are subject to open access obligations enforceable by the Commission and that owners of existing works may be subject to other regulatory action if they are not exercising their rights under this subpart and are refusing third party requests for arrangements enabling third parties to use those rights for deploying fibre optic cable. Section 155ZR inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZS: Interpretation
In this subpart, unless the context otherwise requires,— breakout point connection point existing works
a: has the same meaning as in section 2(1)
b: includes works comprising fibre optic cable installed on existing works before 1 December 2016 and used or intended to be used in connection with the conveyance of electricity (for example, fibre optic cable installed for the purposes of monitoring and ensuring control of the electricity network) fibre optic works
a: means fittings, including fibre optic cable and related materials, used or intended to be used in connection with installing, maintaining, or upgrading any part of a fibre-based network for telecommunications that incorporates fibre optic cable deployed on existing works; and
b: means the installation, maintenance, or upgrading of any part of a fibre-based network for telecommunications as described in paragraph (a); but
c: does not include fibre optic cable that falls within paragraph (b) of the definition of existing works, unless it is repurposed fibre layer 1 layer 1 service layer 2 layer 2 service maintenance
a: repairs and other activities for the purpose of maintaining, or that have the effect of maintaining, fibre optic works; and
b: the carrying out of any replacement or upgrade of fibre optic works OSI Model point of supply section 2(3) repurposed fibre service provider section 5 third party
a: a service provider:
b: a network operator. 1992 No 122 s 23(3) Section 155ZS inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZT: Right for owners of existing works to enter land and carry out fibre optic works
1: An owner of existing works may enter land on which the works are situated for the purpose of accessing those works and carrying out fibre optic works.
2: The right of entry is subject to the conditions that the owner of the existing works—
a: complies with the notice requirements in section 155ZZB(2)(c) to (g)
b: provides the landowner with the capability to connect to a fibre-to-the-premises access network (whether by including, when the fibre optic cable is first being deployed on the existing works, a breakout point in a position that the owner of the existing works considers appropriate, or by any other means suitable for ensuring connectability between the landowner’s property and a network); and
c: provides a single fibre connection to the connection point that meets the relevant requirements in section 155ZU
3: The requirements in subsection (2)(b) and (c) do not apply in relation to repurposed fibre. Section 155ZT inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZU: Fibre optic connections that owners of existing works must provide to landowners
Standard connections
1: If the distance between the breakout point (or equivalent) and the connection point is 200 metres or less, the owner of the existing works must provide the landowner with a standard connection.
2: The owner of the existing works provides a standard connection by aerially installing up to, and including, 200 metres of fibre optic cable between the breakout point (or equivalent) and the connection point, at no cost to the landowner. Non-standard connections
3: If the distance between the breakout point (or equivalent) and the connection point is more than 200 metres, the owner of the existing works must provide the landowner with a non-standard installation.
4: The owner of the existing works provides a non-standard installation by—
a: aerially installing up to, and including, 200 metres of fibre optic cable along the distance between the breakout point (or equivalent) and the connection point, at no cost to the landowner; and
b: contributing 50% of the costs of aerially installing fibre optic cable over the remaining distance, up to, and including, 500 metres, between the 200 metres installed under paragraph (a) and the connection point. Rights and obligations of owner of existing works and landowner where aerial installation not possible
5: Despite subsections (1) to (4), if an aerial installation is not practicable and trenching is required at any point,—
a: the landowner must provide, or meet the cost of, that trenching; and
b: the obligation of the owner of the existing works is not affected, except to the extent that, in any place where the fibre optic cable cannot be installed aerially, the landowner is responsible for trenching in that place as provided in paragraph (a). Variations
6: Nothing in this section prevents an owner of existing works and a landowner from entering into an agreement to replace or vary the rights and obligations concerning the installation of a fibre connection to a building on the landowner’s property provided for in this section.
7: In this section, an equivalent section 155ZT(2)(b) Section 155ZU inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Third party use of existing works Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZV: Third party use of existing works for carrying out fibre optic works
1: An owner of existing works and a third party may enter into an arrangement for the third party to use the owner’s existing works for carrying out fibre optic works.
2: The right under subsection (1) applies only if the owner of the existing works remains responsible to any landowner on whose land the existing works are situated for the performance of all obligations and the discharge of all liabilities under this subpart relating to fibre optic works.
3: Subsection (2) is subject to section 155ZZC(3)
4: Nothing in this section or sections 155ZW to 155ZZC
a: the arrangement is entered into before the date of commencement of this subpart; and
b: the third party is not exercising the rights under this subpart. Section 155ZV inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZW: Third party request to use existing works for carrying out fibre optic works
1: A third party may request an owner of existing works who is not exercising the rights under this subpart to enter into an arrangement under section 155ZV
2: A request must be made in writing.
3: The third party who makes the request must provide to the owner of the existing works any relevant information that the owner considers necessary to properly consider the request.
4: However, the third party may choose to withhold any information that the third party considers is commercially sensitive or subject to legal protection and, in that case, must substitute an explanation for the information withheld. Section 155ZW inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZX: Owner of existing works must consider request
1: An owner of existing works must consider a request as soon as practicable after receiving it.
2: In considering the request, the owner of the existing works must—
a: act in good faith; and
b: take into account the purposes of this subpart. Section 155ZX inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZY: Requirements on owner of existing works if request refused
If the owner of the existing works refuses the request, the owner must—
a: give a notice to the third party that records the refusal; and
b: give a copy of the third party’s request and the notice under paragraph (a) to the Commission. Section 155ZY inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZ: Minister may intervene
1: The Minister may require the Commission to report to the Minister about the information received under section 155ZY
a: the requests made to existing works owners by third parties; and
b: the requests refused.
2: The Minister may, after considering the Commission’s report, decide whether to recommend that regulation be imposed and, if so, the type or types of regulation. Section 155ZZ inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Arrangements for third party to use existing works Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZA: Conditions of right under section 155ZV
1: For the purpose of ensuring that an arrangement under section 155ZV Condition concerning communications
2: The owner of the existing works (and not the third party)—
a: is the person responsible for all communications with the landowner concerning the existing works, in so far as the communications involve fibre optic works; and
b: is the only person who may conduct those communications, unless—
i: the landowner authorises the third party to conduct those communications, either generally or from time to time; or
ii: it is necessary for the third party to communicate with the landowner because there are circumstances of probable danger to life or property or it is immediately necessary to maintain the continuity of telecommunications services. Condition concerning compensation
3: The owner of the existing works (and not the third party, except as provided in section 155ZZC(3) section 155ZZC Section 155ZZA inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Rights and obligations concerning exercise of rights Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZB: Powers and duties of owners of existing works and landowners
1: The provisions of the Electricity Act 1992
a: as if every reference to existing works in those provisions included fibre optic works; and
b: with all other necessary modifications.
2: The provisions of the Electricity Act 1992
a: section 22
b: section 22A
c: section 23
d: section 23A
e: section 23B
f: section 23C
g: section 23D
h: section 23E
i: section 23F Section 155ZZB inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZC: Compensation for damage, etc
1: Every person who has a right in respect of, or interest in, any land or property that is damaged or injuriously affected by an owner of existing works or a third party exercising any of the statutory rights given by this subpart is entitled to full compensation for all loss, injury, or damage that the person suffers as a result.
2: The owner of the existing works is liable to the landowner for payment of the compensation, regardless of whether the owner of the existing works, a third party within the meaning of section 155ZS
3: However, subsection (2) does not prevent an owner of existing works from claiming an indemnity or a contribution from the third party where the owner of the existing works alleges that the third party was wholly or partly responsible.
4: If the landowner and the owner of the existing works are unable to reach an agreement concerning compensation for loss, injury, or damage suffered by the landowner,—
a: a claim for compensation under this section may be made within the time and in the manner specified in the Public Works Act 1981
b: the provisions of that Act, as far as they are applicable and with all necessary modifications, apply in relation to claims under this section. 1992 No 122 s 57 s 154 Section 155ZZC inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Open access obligations Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZD: Services provided using rights under subpart
1: An owner of existing works who provides a telecommunications service, relying on the rights under this subpart, using repurposed fibre optic cable must,—
a: where capacity exists, offer a layer 1 service and provide that service on non-discriminatory terms; and
b: if the owner of the existing works elects to offer a layer 2 service, provide that service on an open access basis and on non-discriminatory terms.
2: An owner of existing works who provides a telecommunications service, relying on the rights under this subpart, using fibre optic cable other than repurposed fibre optic cable must—
a: offer a layer 2 service and provide that service on an open access basis and on non-discriminatory terms; and
b: if the owner of the existing works elects to provide a layer 1 service, offer that service on an open access basis and on non-discriminatory terms.
3: If an owner of existing works enters into an arrangement with a third party under section 155ZV
4: In this section, non-discrimination non-discriminatory Section 155ZZD inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZE: Power to grant relief in respect of breach of open access obligations
If, on the application of the Commission, it appears to the High Court that an owner of existing works or a third party intends to engage, is engaging, or has engaged in conduct that constitutes, or would constitute, a breach of section 155ZZD Section 155ZZE inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZF: Undertaking under Part 4AA overrides open access obligations under subpart
If a person uses the rights under this subpart as part of a build of infrastructure under the UFB initiative, the provisions of the deed of undertaking entered into by that person under Part 4AA Section 155ZZF inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZG: Right of entry does not affect existing works owner’s rights and obligations under Electricity Act 1992
The right of entry under section 155ZT Electricity Act 1992 Section 155ZZG inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZH: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that—
a: prescribe aesthetic standards concerning the way in which fibre optic technology and associated equipment must be installed when exercising the rights under this subpart; and
b: prescribe procedural standards for how communications with landowners are undertaken and how persons exercising the rights given by this subpart must act when on private property; and
c: prescribe protocols for ensuring the interoperability of equipment installed; and
d: prescribe minimum clearance distances for fibre optic works that involve existing works; and
e: impose regulation on the rights given by this subpart, in relation to existing works that the owners of those works may confer on third parties under this subpart.
2: The Minister must, before recommending the making of regulations under this section,—
a: consult the Minister who is responsible for the administration of the Electricity Act 1992
b: in the case of regulations under subsection (1)(e), consult the Commission after taking the steps in section 155ZZ
3: Failure to comply with subsection (2) does not affect the validity of the regulations.
4: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 155ZZH inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZZH(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
4AA: Services provided using networks developed with Crown funding: Undertakings regime and Commerce Act 1986 authorisations
Part 4AA inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
1: Preliminary provisions
Subpart 1 inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AA: Overview
1: This Part—
a: requires providers of wholesale telecommunications services that are provided using a fibre optic communications network that is constructed, in whole or in part, with Crown investment funding provided as part of the Ultra-fast Broadband Initiative, or that provide access to unbundled elements of such a network, to give enforceable undertakings providing for non-discrimination, equivalence, and other matters in relation to the supply of those services ( subpart 2
b: restricts unbundling of point-to-multipoint layer 1 services before 1 January 2020 in respect of those service providers ( section 156AP
c: requires those service providers to disclose information concerning costs and other matters in accordance with requirements of the Commission ( subpart 3
d: enables providers of wholesale telecommunications services provided using a network that is constructed, in whole or in part, with Crown investment funding as part of the Rural Broadband Initiative to give enforceable undertakings that provide for non-discrimination and other matters in relation to those services ( subpart 4
e: provides certain Commerce Act 1986 subpart 5 subpart 6
2: This section is intended only as a guide to the general scheme and effect of this Part. Section 156AA inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AB: Interpretation
In this Part, unless the context otherwise requires,— access seeker arm's-length section 69D Crown disclose equivalence fibre-to-the-premises access network
a: means a network structure used to deliver telecommunications services over fibre media that connects a powered node in a central office location (an exchange or equivalent powered facility) to an end-user's premises or building, or the optical distribution facility of an end-user's premises or building; and
b: includes the powered node in the central office location; and
c: includes that part of the overall telecommunications link that connects to the end-user's equipment information layer 1 service New Zealand Government Ultra-Fast Broadband Initiative Invitation to Participate in Partner Selection Process LFC local fibre company
a: a company in which the Crown and the UFB partner hold shares; and
b: a company in which the Crown holds a financial interest pursuant to the selection of that company as a UFB partner LFC fibre network non-discrimination point-to-multipoint layer 1 service prescribed relevant service
a: in subparts 2 3
b: in subpart 4 ; and
c: in subpart 7 section 156AZE Rural Broadband Initiative service provider UFB 2 UFB partner undertaking Section 156AB inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AB relevant service amended 3 May 2017 section 14(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AB relevant service inserted 3 May 2017 section 14(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AB UFB 2 inserted 3 May 2017 section 14(3) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AB UFB initiative repealed 13 November 2018 section 39(8) Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Undertakings relating to networks developed with Crown funding as part of UFB initiative
Subpart 2 inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AC: Purposes
The purposes of this subpart are to—
a: promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand; and
b: require transparency, non-discrimination, and equivalence of supply in relation to certain telecommunications services; and
c: facilitate efficient investment in telecommunications infrastructure and services. Section 156AC inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Requirements for undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AD: Main requirements for undertakings
1: An LFC must enter into an undertaking in accordance with this subpart.
2: The undertaking must—
a: be executed by the LFC; and
b: provide for the LFC to supply unbundled layer 1 services on all parts of its fibre-to-the-premises access network on and after the specified date
c: provide for the LFC to—
i: achieve non-discrimination in relation to the supply of relevant services; and
ii: design and build the LFC fibre network in a way that enables equivalence in relation to the supply of unbundled layer 1 services to be achieved on and after the specified date
iii: achieve equivalence in relation to the supply of unbundled layer 1 services on and after the specified date
d: provide for the LFC to deal with the UFB partner on arm's-length terms (unless the UFB partner and the LFC are not separate entities); and
e: provide for the LFC to maximise the use of standard terms for the supply of services through the use of template, or model, agreements; and
f: provide for access seekers to have the same access to information from the LFC; and
g: specify rules for the treatment of confidential information relating to access seekers; and
h: provide for disclosure of relevant information to the Commission, to support the Commission's assessment of compliance with the undertaking; and
i: provide for any other matters required by a determination of the Minister under section 156AE
3: An undertaking may specify a mechanism for resolution, by a suitably qualified and experienced independent person, of any disputes that arise between the LFC and access seekers after the undertaking is approved.
4: Subsection (3) does not limit the further matters that may be included in an undertaking.
5: However, an undertaking must not—
a: provide for rules or obligations in respect of services that are not relevant services (including layer 1 services); or
b: specify the price or non-price terms of supply for any telecommunications service.
6: In this section,— specified date
a: in relation to UFB 1 LFCs, 1 January 2020, unless paragraph (c) applies; and
b: in relation to UFB 2 LFCs, 1 January 2026; and
c: in relation to UFB 1 LFCs that win contracts for UFB 2,—
i: 1 January 2020 for the UFB 1 part of the relevant network; and
ii: 1 January 2026 for the UFB 2 part of the relevant network UFB 1 Section 156AD inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AD(2)(b) amended 3 May 2017 section 15(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(2)(c)(ii) amended 3 May 2017 section 15(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(2)(c)(iii) amended 3 May 2017 section 15(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(6) inserted 3 May 2017 section 15(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(6) UFB 1 amended 13 November 2018 section 39(9) Telecommunications (New Regulatory Framework) Amendment Act 2018
156AE: Minister may determine further requirements for undertakings
1: The Minister may determine further requirements with which an undertaking must comply.
2: The further requirements may—
a: specify the relevant services, or types of relevant services, to which the requirements in section 156AD
b: include further matters that must be addressed in the undertaking, and minimum requirements for the undertaking.
3: Any further requirements determined by the Minister under this section do not apply to an undertaking that has already been approved by the Minister.
4: A determination 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 The maker must: LA19 ss 73 74(1)(a) cl 14 • notify it in the Gazette • publish it on the Internet in an electronic form that is publicly accessible (at all reasonable times) • make it available for inspection free of charge at the head office of the Ministry (during office hours) • make it available for sale at a reasonable price 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 156AE inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AE(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
156AF: Minister must issue and consult on draft determination
Before making a determination under section 156AE Section 156AF inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AG: Procedural requirements for determination
Section 156AG repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Process for submission and consideration of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AH: LFC must submit undertaking for approval by Minister
An LFC must submit an undertaking for approval by the Minister by sending the undertaking in writing to the Minister. Section 156AH inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AI: Minister may approve or decline undertaking
1: The Minister may, by notice in writing to the LFC who submitted the undertaking,—
a: approve the undertaking; or
b: decline to approve the undertaking.
2: The Minister must not approve the undertaking unless the Minister is satisfied that it meets the requirements in section 156AD
3: If the Minister declines to approve the undertaking, the Minister—
a: must give reasons for not approving the undertaking; and
b: may invite the LFC to submit an amended undertaking for approval by the Minister.
4: Subsections (1) and (3) and section 156AH
5: The Minister must notify his or her approval of an undertaking by notice in the Gazette Section 156AI inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Implementation of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AJ: Implementation of undertaking
On and from the date that the Minister's approval of an undertaking is notified in accordance with section 156AI(5)
a: properly executed by, and binding on, the LFC; and
b: given in favour of the Crown. Section 156AJ inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AK: LFC must publish undertaking
1: As soon as practicable after the Minister's approval of an undertaking is notified, the LFC must publish the undertaking on an Internet site maintained by or on behalf of the LFC so that it is publicly accessible at all reasonable times.
2: The LFC must make a copy of the undertaking available for inspection free of charge at its registered office. Section 156AK inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Variation and termination of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AL: Variation of undertaking
1: The Minister may, on the recommendation of the Commission, approve a variation of an undertaking.
2: The Commission must not make a recommendation under subsection (1) unless—
a: the LFC who gave the undertaking has submitted a request for the variation to the Commission; and
b: the Commission has consulted with interested parties; and
c: the Commission is satisfied that the variation would best give effect to the purposes of this subpart. Section 156AL inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AM: Procedure for variation of undertaking
1: An LFC may submit a request for a variation of an undertaking under section 156AL
2: The Commission must notify the LFC in writing of whether it proposes to recommend that the Minister approve the variation.
3: The notice under subsection (2)—
a: must set out the reasons for the Commission's decision; and
b: may invite the LFC to submit an amended variation for consideration, if the Commission does not propose to recommend that the Minister approve the variation.
4: The Commission must make reasonable efforts to give the notice not later than 30 working days after the Commission receives the request for the variation from the service provider.
5: Sections 156AI to 156AK Section 156AM inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AN: Clarification of undertaking
The Commission may amend an undertaking to clarify it if—
a: the Commission, on the application of the LFC who gave the undertaking, considers that the undertaking requires clarification; and
b: the clarification is not material. Section 156AN inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156ANA: Amendment or consolidation of undertaking
1: The Minister may approve 1 or both of the following:
a: an amendment to an undertaking, if the amendment is necessary or desirable for the purpose of making the undertaking consistent with this Act:
b: the consolidation of 2 or more undertakings.
2: Sections 156AI to 156AK Section 156ANA inserted 13 November 2018 section 22 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AO: Termination of undertaking
1: An undertaking may be terminated by mutual agreement between the LFC and the Minister.
2: The Minister may request the Commission to recommend whether an undertaking should be terminated under this section.
3: The Commission may, in response to a request under subsection (2) or on its own initiative, recommend to the Minister that an undertaking be terminated under this section, if the Commission considers that the termination would best promote the purposes of this subpart. Section 156AO inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Effect of undertakings in relation to unbundling of certain services Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AP: Commission may not recommend or investigate unbundling of point-to-multipoint layer 1 services
1: The Commission must not, before the close of 31 December 2019, provide a final report to the Minister recommending the unbundling of any point-to-multipoint layer 1 service that is provided by an LFC that is subject to a binding undertaking.
2: The Commission must not, before the close of 31 December 2018, commence an investigation into the unbundling of any point-to-multipoint layer 1 service provided by an LFC that is subject to a binding undertaking.
3: An LFC is subject to a binding undertaking for the purposes of this section if it has entered into an undertaking that has been approved by the Minister under this subpart and that is still in force. Section 156AP inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Enforcement of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AQ: Enforcement and remedies under Part 4A
Sections 156L 156M 156O to 156R Part 4A Section 156AQ inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AR: Power of court to grant relief in respect of undertakings
1: If, on the application of the Commission, it appears to the High Court that an LFC intends to engage, or is engaging, or has engaged, in conduct that constitutes, or would constitute, a breach of the terms of an undertaking, the court may make any orders on any terms and conditions that it thinks appropriate, including, without limitation, an order to—
a: restrain the LFC from engaging in conduct that constitutes, or would constitute, the breach:
b: require the LFC to do a particular act or thing:
c: require the LFC to comply with the terms of the undertaking.
2: In any proceeding under this section, the Commission, on the order of the court, may obtain discovery and administer interrogatories.
3: The court may at any time rescind or vary an order made under this section. Section 156AR inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AS: Interrelationship of remedies
1: Nothing in this Part or Part 4A
2: Any right of action or other remedy available under this Part or Part 4A
3: However, in determining whether to order a person to pay a penalty, compensation, or damages in respect of an undertaking, the court must have regard to—
a: whether that person has already been ordered to pay a penalty, compensation, or damages for the same matter; and
b: if so, the amount and effect of that first order. Section 156AS inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
3: Information disclosure by LFCs with undertakings
Subpart 3 repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AT: Purpose
Section 156AT repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AU: Commission must require disclosure by LFCs
Section 156AU repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AV: Further powers of Commission relating to information disclosure
Section 156AV repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AW: Commission may publish reports, etc, on information collected
Section 156AW repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Undertakings relating to networks developed with Crown funding as part of Rural Broadband Initiative
Subpart 4 inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AX: Interpretation of this subpart
In this subpart, unless the context otherwise requires,— relevant service service provider Section 156AX inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AY: Requirements for undertakings under this subpart
1: A service provider may enter into an undertaking.
2: The undertaking must—
a: provide for the service provider to achieve non-discrimination in relation to supply of relevant services; and
b: provide for the disclosure of relevant information to the Commission, to support the Commission's assessment of compliance with the undertaking.
3: An undertaking may specify a mechanism for resolution, by a suitably qualified and experienced independent person, of any disputes that arise between the service provider and access seekers after the undertaking is approved.
4: Subsection (3) does not limit the further matters that may be included in an undertaking. Section 156AY inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AZ: Application of provisions in subpart 1
Sections 156AH to 156AO 156AQ to 156AS Section 156AZ inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZ amended 13 November 2018 section 23 Telecommunications (New Regulatory Framework) Amendment Act 2018
5: Commerce Act 1986 authorisations in respect of Rural Broadband Initiative
Subpart 5 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AZA: Restrictive trade practices authorisations in respect of Telecom and Vodafone participation in Rural Broadband Initiative
Section 156AZA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
6: Commerce Act 1986 authorisations in respect of Ultra-fast Broadband Initiative
Subpart 6 added 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AZB: Interpretation for this subpart
In this subpart, unless the context otherwise requires,— fibre optic network assets Telecom Chorus, Spark, and a successor to Chorus or Spark telecommunications network company Section 156AZB inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZB Telecom amended 13 November 2018 section 41(3) Telecommunications (New Regulatory Framework) Amendment Act 2018
156AZC: Restrictive trade practices authorisations in respect of participation in Ultra-fast Broadband Initiative
1: The following are authorised:
a: any contract, arrangement, or understanding between the Crown and Telecom that is necessary to give effect to the selection of Telecom as a UFB partner in a particular region or regions; and
b: any contract, arrangement, or understanding that is part of the arrangement with the Crown under the UFB initiative in a particular region or regions, under which Telecom or a UFB partner transfers fibre optic network assets to a local fibre company owned partially by the Crown.
2: The authorisations—
a: apply to any contract, arrangement, or understanding that is entered into before the date that is 2 years after
b: do not apply to any contract, arrangement, or understanding that is entered into more than 2 years after the date on which this section comes into force.
2A: Despite subsection (2), the authorisations—
a: apply to any contract, arrangement, or understanding that is entered into in respect of UFB 2 before the date that is 2 years after
b: do not apply to any contract arrangement or understanding in respect of UFB 2 that is entered into more than 2 years after the date on which this subsection comes into force.
3: The authorisations must be treated as if they were authorisations granted by the Commerce Commission under section 58(1), (2), (5), and (6)
4: Sections 65 91 to 97
5: The effect of the authorisations is the same as that stated in section 58A(1) and (2) Section 156AZC inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZC(2)(a) amended 13 November 2018 section 41(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156AZC(2A) inserted 3 May 2017 section 16 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AZC(2A)(a) amended 13 November 2018 section 41(5) Telecommunications (New Regulatory Framework) Amendment Act 2018
156AZD: Business acquisition authorisations in respect of participation in Ultra-fast Broadband Initiative
1: The following are authorised:
a: any acquisition by a UFB partner or a local fibre company owned partially by the Crown of the fibre optic network assets or undertaking of any telecommunications network company as part of an arrangement with the Crown under the UFB initiative; and
b: any acquisition by a UFB partner of the shares of any telecommunications network company (whether on a minority or an equal basis or otherwise) as part of an arrangement with the Crown, or with the Crown and another UFB partner, under the UFB initiative; and
c: any acquisition by the Crown of shares in, or assets of, Telecom pursuant to the selection of Telecom as a UFB partner in a particular region or regions.
2: The authorisations do not apply to any acquisition that is made more than 2 years after the date on which this section comes into force , except an acquisition under UFB 2
2A: The authorisations—
a: apply to any acquisition under UFB 2 that is made before the date that is 2 years after
b: do not apply to any acquisition under UFB 2 that is made more than 2 years after the date on which this subsection comes into force.
3: The authorisations must be treated as if they were authorisations granted by the Commerce Commission under section 67(3)(b)
3A: However, if the authorisations are for any acquisitions under UFB 2, the authorisations must be treated as if they were authorisations granted by the Commission under section 67(3)(b)
4: Sections 91 to 97
5: The effect of the authorisations is the same as that stated in section 69 Section 156AZD inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZD(2) amended 3 May 2017 section 17(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AZD(2A) inserted 3 May 2017 section 17(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AZD(2A)(a) amended 13 November 2018 section 41(6) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156AZD(3A) inserted 3 May 2017 section 17(3) Telecommunications (Property Access and Other Matters) Amendment Act 2017
7: Commerce Act 1986 authorisations in respect of Rural Broadband Initiative 2 and Mobile Black Spot Fund
Subpart 7 inserted 18 August 2017 section 18 Telecommunications (Property Access and Other Matters) Amendment Act 2017
156AZE: Interpretation for this subpart
In this subpart, unless the context otherwise requires,— MBSF RBI2 relevant service
a: in relation to RBI2, a wholesale telecommunications service that is provided using, or that provides access to, infrastructure forming part of a broadband network where infrastructure was constructed with funding provided, in whole or in part, by the Crown as part of RBI2; and
b: in relation to MBSF, a wholesale service that is provided using, or that provides access to, a cellular mobile telephone network constructed, in whole or in part, with money provided by the Crown as part of the MBSF service provider Section 156AZE inserted 18 August 2017 section 18 Telecommunications (Property Access and Other Matters) Amendment Act 2017
156AZF: Restrictive trade practices authorisations in respect of transactional arrangements for RBI2 and MBSF
1: Any contract, arrangement, or understanding between the Crown and 1 or more service providers to provide funding for those service providers, in accordance with RBI2 or the MBSF, is authorised.
2: The authorisation applies to any contract, arrangement, or understanding that is entered into before the date on which this section comes into force as if the authorisation were in force at the time that it was entered into.
3: The authorisation does not apply to a contract, arrangement, or understanding that is entered into later than 6 months after the date on which this section comes into force.
4: The authorisation must be treated as if it were an authorisation granted by the Commission under section 58(1), (2), (5), and (6)
5: Sections 65 91 to 97
6: The effect of the authorisation is the same as the effect stated in section 58A(1) and (2) Section 156AZF inserted 18 August 2017 section 18 Telecommunications (Property Access and Other Matters) Amendment Act 2017
4A: Enforcement
Part 4A inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
1: Enforcement of statutory and regulatory provisions
Subpart 1 inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Preliminary Heading inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156A: Application of section 156B
1: Section 156B
a: fails, without reasonable excuse, to comply with section 22A
b: fails, without reasonable excuse, to comply with a notice under section 30F
c: knowingly submits a standard terms proposal that fails to comply with section 30G
d: fails, without reasonable excuse, to comply with a notice under section 45 subpart 1
e: fails, without reasonable excuse, to provide to the Commission not later than the time specified by it—
i: the statement referred to in section 45(2)(b)(i)
ii: all the information referred to in section 45(2)(b)(ii)
f: knowingly provides false or misleading information or documents under section 45 subpart 1
fa: fails, without reasonable excuse, to comply with section 69F
fb: fails, without reasonable excuse, to comply with a notice under section 69H
g: fails, without reasonable excuse, to comply with an information disclosure requirement made under section 156AU
h:
i: fails, without reasonable excuse, to provide to the Commission, not later than the time specified by it, the information or documents referred to in section 81(2)
ia: knowingly provides or signs a false or misleading certificate under section 81
ib: knowingly provides false or misleading information or documents under section 81
j: fails, without reasonable excuse, to comply with section 82
ja: knowingly provides false or misleading information or documents under section 82
k: fails, without reasonable excuse, to comply with section 83
l: knowingly provides false or misleading information or documents under section 83
la: fails, without reasonable excuse, to comply with section 94D
lb: knowingly provides false or misleading information or documents under section 94D
lba: fails, without reasonable excuse, to comply with section 94EA
lbb: knowingly provides false or misleading information under section 94EA
lc: fails, without reasonable excuse, to comply with a requirement of the Commission under section 100BA(3)
ld: knowingly provides false or misleading information or documents under section 100BA
m: fails, without reasonable excuse, to comply with section 111A
ma: fails, without reasonable excuse, to comply with section 156AK
n: fails, without reasonable excuse, to comply with any regulations made under section 157(ch)
o: fails, without reasonable excuse, to comply with a Commission RSQ code:
p: fails, without reasonable excuse, to comply with the Commission 111 contact code:
q: fails, without reasonable excuse, to comply with the copper withdrawal code.
2: Section 156B
a: section 69L
b: section 69T Section 156A inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156A(1)(fa) inserted 30 November 2011 section 36 section 64(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(fb) inserted 30 November 2011 section 36 section 64(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(g) amended 13 November 2018 section 39(10) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)(g) amended 1 July 2011 section 82(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(h) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)(i) substituted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(ia) inserted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(ib) inserted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(j) substituted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(ja) inserted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(la) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(lb) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(lba) inserted 30 November 2011 section 36 section 60 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(lbb) inserted 30 November 2011 section 36 section 60 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(lc) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(ld) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(ma) amended 1 July 2011 section 82(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)(o) inserted 13 November 2018 section 28 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)(p) inserted 13 November 2018 section 28 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)(q) inserted 13 November 2018 section 28 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(2) added 30 November 2011 section 36 section 64(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156B: Enforcement actions that Commission may take
1: The Commission may take 1
a: serve a civil infringement notice on the person under section 156D
b: apply to the High Court for an order, under section 156L ; or
c: in relation to a person who commits a breach referred to in section 156A(1)(o), (p), or (q) section 156CA
1A: The Commission may, in addition to or instead of taking action under subsection (1), take 1 or both of the following actions against a person who commits a breach referred to in section 156A(1)(o)
a: apply to the High Court for an order under section 156MA
b: apply to the High Court for an order under section 156MB
1B: The Commission may, in addition to or instead of taking action under subsection (1), take 1 or both of the following actions against a person who commits a breach referred to in section 156A(1)(q)
a: apply to the High Court for an order under section 156MC
b: apply to the High Court for an order under section 156MD
2: This section does not limit any power conferred on the Commission by or under section 15 Section 156B inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156B(1) amended 13 November 2018 section 29(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1)(b) amended 13 November 2018 section 29(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1)(c) inserted 13 November 2018 section 29(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1A) inserted 13 November 2018 section 29(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1B) inserted 13 November 2018 section 29(4) Telecommunications (New Regulatory Framework) Amendment Act 2018
156BA: Enforcement actions that end-user may take
1: If a person commits a breach referred to in section 156A(1)(q) clause 1
a: apply to the High Court for an order under section 156MC
b: apply to the High Court for an order under section 156MD
2: An end-user may take the action referred to in subsection (1) whether or not the Commission has taken action against the person under section 156B Section 156BA inserted 13 November 2018 section 30 Telecommunications (New Regulatory Framework) Amendment Act 2018
156C: Matters that Commission must take into account in deciding what enforcement action to take
In making a decision about what action to take under section 156B
a: the seriousness of the alleged breach:
b: the circumstances in which the alleged breach took place:
c: whether or not the person who is alleged to have committed the breach has previously committed a breach of that kind or has engaged in any similar conduct:
d: the culpability of the person who is alleged to have committed the breach:
e: the nature and extent of any commercial gain resulting from the alleged breach:
f: the nature and extent of any loss or damage suffered by any person as a result of the alleged breach. Section 156C inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Enforceable undertakings in relation to Commission RSQ code or copper withdrawal code Heading inserted 13 November 2018 section 31 Telecommunications (New Regulatory Framework) Amendment Act 2018
156CA: Commission may accept undertakings
1: The Commission may accept a written undertaking given by, or on behalf of, a person in connection with any matter relating to the enforcement of a Commission RSQ code or the copper withdrawal code.
2: The person may withdraw or vary the undertaking with the consent of the Commission. 1986 No 121 s 46A Section 156CA inserted 13 November 2018 section 31 Telecommunications (New Regulatory Framework) Amendment Act 2018
156CB: Enforcement of undertakings
1: If the Commission considers that a person who has given an undertaking under section 156CA
2: The High Court may make any of the following orders if it is satisfied that the person has, without reasonable excuse, breached a term of the undertaking:
a: an order directing the person to comply with the term:
b: an order directing the person to pay to the Crown—
i: an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; or
ii: any pecuniary penalty that the court determines to be appropriate (up to the maximum amount specified in section 156L(3)(c)
c: any order that the court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach:
d: an order for any consequential relief that the court thinks appropriate.
3: Section 156L(4) to (7) 1986 No 121 s 46B Section 156CB inserted 13 November 2018 section 31 Telecommunications (New Regulatory Framework) Amendment Act 2018 Civil infringement notice Heading inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156D: Civil infringement notice
1: A civil infringement notice must be served within 12 months after the day on which a breach of any of the provisions set out in section 156A
2: A civil infringement notice must be in the prescribed form and must contain the following particulars:
a: sufficient details to inform the person issued with the notice of the time, manner, and nature of the alleged breach:
b: the amount of the pecuniary penalty prescribed to be paid for the alleged breach:
c: the address at which the pecuniary penalty may be paid or an explanation of how payment of the pecuniary penalty is to be made, or both:
d: the time within which the pecuniary penalty must be paid:
e: a statement of what may happen if the person does not pay the pecuniary penalty by that time:
f: a statement of the person's right to object, under section 156E
g: any other prescribed information (if any). Section 156D inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156E: Objection to civil infringement notice
1: A person who has been served with a civil infringement notice may make a written objection to the Commission on either or both of the following grounds:
a: that the person has not committed the alleged breach:
b: that the amount of the pecuniary penalty specified in the notice is excessive having regard to the nature of the alleged breach.
2: An objection must—
a: contain the prescribed information; and
b: be made within the prescribed time and in the prescribed manner. Section 156E inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156F: Commission must consider objection
1: The Commission must—
a: consider every objection made in accordance with section 156E
b: decide whether to refuse or accept an objection within 10 working days after the date on which the objection is made; and
c: promptly give written notice of its decision and the reasons for its decision to the person who made the objection.
2: If the Commission refuses the objection, the notice under subsection (1)(c) must also contain the following particulars:
a: the address at which the pecuniary penalty may be paid or an explanation of how payment of the pecuniary penalty is to be made, or both:
b: a time within which the pecuniary penalty must be paid:
c: a statement of what may happen if the person does not pay the pecuniary penalty by that time:
d: a statement of the person's right to appeal, under section 156I
3: If the Commission accepts the objection, the notice under subsection (1)(c) must also contain a statement that the civil infringement notice has been withdrawn. Section 156F inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156G: Effect of withdrawal of civil infringement notice
1: A person who has been served with a civil infringement notice is discharged from any liability for a breach specified in the notice if the Commission withdraws the notice—
a: on its own initiative; or
b: in accordance with section 156F(3)
2: The Commission must refund the pecuniary penalty specified in a civil infringement notice if the notice is withdrawn after the penalty was paid. Section 156G inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156H: Consequence of not paying pecuniary penalty specified in civil infringement notice
1: The consequence specified in subsection (2) applies if a person—
a: is served with a civil infringement notice; and
b: fails to pay the whole, or any part, of the pecuniary penalty on or before the later of the time specified in that notice or in the notice under section 156F(1)(c)
2: The consequence is that the Commission may recover from the person, as a debt due to the Commission, in the District Court
a: the unpaid portion of the pecuniary penalty; and
b: the actual and reasonable costs of recovery awarded against the person by that court.
3: In any proceedings for the recovery of a debt under this section, the District Court must not enter judgment in favour of the Commission unless it is satisfied that the circumstances referred to in subsection (1) exist. Section 156H inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156H(2) amended 1 March 2017 section 261 District Court Act 2016
156I: Right to appeal
1: A person may appeal to the District Court
2: An appeal under subsection (1) must be brought within 20 working days after the date on which the notice under section 156F(1)(c)
3: An appeal under subsection (1) does not operate as a stay of the civil infringement notice. Section 156I inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156I(1) amended 1 March 2017 section 261 District Court Act 2016
156J: Decision on appeal
1: The District Court section 156I
2: If the District Court dismisses an appeal, the dismissal must be taken to be an order for the payment of the pecuniary penalty specified in the civil infringement notice to which the decision under appeal relates.
3: If the District Court allows an appeal, it may make an order that the pecuniary penalty specified in the civil infringement notice to which the decision under appeal relates—
a: is varied or cancelled; or
b: is to be refunded to the person, if the appeal is allowed after the penalty was paid to the Commission or was recovered as a debt due to the Commission under section 156H Section 156J inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156J(1) amended 1 March 2017 section 261 District Court Act 2016
156K: Commission may publish information about issue of civil infringement notice
1: The Commission may, in any manner that it thinks fit, publish a notice that contains information or statements to the following effect:
a: a statement that a person has been served with a civil infringement notice under this Act:
b: the name of the person concerned:
c: the nature of the breach in respect of which the civil infringement notice was issued:
d: the amount of the pecuniary penalty prescribed to be paid for the breach:
e: any other prescribed information.
2: The Commission must not exercise its powers under subsection (1)—
a: before the close of the prescribed time for making an objection under section 156E
b: if an objection is made under section 156E section 156I
c: if the Commission withdraws the relevant civil infringement notice under section 156F
d: if an appeal under section 156I Section 156K inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Pecuniary penalty Heading inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156L: Pecuniary penalty
1: The High Court may order a person to pay to the Crown any pecuniary penalty that the court determines to be appropriate if the High Court is satisfied, on the application of the Commission, that—
a: the person has failed, without reasonable excuse, to comply with an undertaking Part 2A
ab: the person has failed, without reasonable excuse, to comply with an undertaking under Part 4AA
b: the person has committed a breach of any of the provisions set out in section 156A
2: In determining an appropriate remedy to be imposed under this section, the High Court must have regard to all relevant matters, including—
a: the nature and extent of any commercial gain; and
b: if subsection (1)(ab) applies, the size of the service provider.
3: The amount of any pecuniary penalty for each act or omission must not exceed—
a: $10 million for a breach referred to in subsection (1)(a); and
ab: $10 million for a breach referred to in subsection (1)(ab) ( Part 4AA
b: $10 million for a breach referred to in section 69L
ba: $10 million for a breach referred to in section 69T
bb: $10 million for a breach referred to in section 69XG
bc: $1 million for a breach referred to in section 156A(fa) section 69F
bd: $1 million for a breach referred to in section 156A(fb) section 69H
c: $300,000 in any other case.
4: The standard of proof in proceedings under this section is the standard of proof that applies in civil proceedings.
5: Proceedings under this section may be commenced within 3 years after the matter giving rise to the breach was discovered or ought reasonably to have been discovered.
6: If conduct by a person constitutes a breach of 2 or more provisions referred to in subsection (1), proceedings may be commenced under this section against that person in relation to the breach of any 1 or more of those provisions.
7: However, no person is liable to more than 1 pecuniary penalty under this section for the same conduct. Section 156L inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156L(1)(a) amended 30 November 2011 section 36 section 65(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(1)(ab) inserted 1 July 2011 section 83(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(2) substituted 1 July 2011 section 83(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)(ab) inserted 1 July 2011 section 83(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)(b) substituted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)(ba) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)(bb) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)(bc) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)(bd) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156M: Further penalty may be imposed for continuing breach
1: In addition to a pecuniary penalty imposed under section 156L
a: $500,000 for a breach referred to in section 156L(1)(a)
aa: $500,000 for a breach referred to in section 69L
ab: $500,000 for a breach referred to in section 69T
ac: $50,000 for a breach referred to in section 156A(fa) or (fb)
b:
c: $10,000 for any other case.
2: To avoid doubt, any further penalty under subsection (1) may be imposed only in respect of the period that—
a: begins on the day on which the pecuniary penalty was imposed under section 156L
b: ends on the day on which the breach is remedied. Section 156M inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156M(1)(aa) inserted 30 November 2011 section 36 section 66 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156M(1)(ab) inserted 30 November 2011 section 36 section 66 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156M(1)(ac) inserted 30 November 2011 section 36 section 66 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156M(1)(b) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Additional remedies in relation to breach of Commission RSQ code Heading inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MA: Order to disclose information or publish advertisement
1: The High Court may make 1 or both of the following orders if the High Court is satisfied, on the application of the Commission, that a person has committed a breach referred to in section 156A(1)(o)
a: an order requiring that person, or any other person involved in the breach, to disclose to the public, or to a particular person or class of persons, the information or class of information that is specified in the order, being information that is in the possession of the person to whom the order is directed or to which that person has access:
b: an order requiring that person, or any other person involved in the breach, to publish corrective statements the terms of which are specified in, or are to be determined in accordance with, the order.
2: The information must be disclosed or published—
a: in the manner and at the times that are specified in the order; and
b: at the person’s own expense.
3: The High Court may hear and determine an application in conjunction with any other proceedings under this Part. 1986 No 121 s 42 Section 156MA inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MB: Other orders for breach of Commission code
1: The High Court may make 1 or more of the following orders if the High Court is satisfied, on the application of the Commission, that a person ( person X section 156A(1)(o) or (p)
a: an order directing person X to refund money or return property to any other person:
b: an order directing person X to pay to any other person the amount of any loss or damage caused to that other person by the conduct of person X:
c: an order directing person X, at person X’s own expense, to supply a service to any other person:
d: an order declaring all or part of a contract made between person X and any other person, or a collateral arrangement relating to such a contract,—
i: to be void; and
ii: if the court thinks fit, to have been void at all times on and after a date specified in the order, which may be before the date on which the order is made:
e: an order in respect of a contract made between person X and any other person, or a collateral arrangement relating to such a contract,—
i: varying the contract or the arrangement in the manner specified in the order; and
ii: if the court thinks fit, declaring the varied contract or arrangement to have had effect on and after a date specified in the order, which may be before the date on which the order is made.
2: The High Court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part. 1986 No 121 s 43 Section 156MB inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018 Additional remedies in relation to breach of copper withdrawal code Heading inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MC: Other orders for breach of copper withdrawal code
1: The High Court may make 1 or both of the following orders if the High Court is satisfied, on the application of the Commission or an end-user, that a person has committed a breach referred to in section 156A(1)(q)
a: an order directing the person to pay to an end-user the amount of any loss or damage caused to the end-user by the conduct of the person:
b: an order directing the person, at the person’s own expense, to supply a service to an end-user.
2: The High Court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part.
3: An order under subsection (1)(b) must not be inconsistent with a restriction that applies under subpart 3 1986 No 121 s 43 Section 156MC inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MD: Injunctions for breach of copper withdrawal code
1: If the High Court is satisfied, on the application of the Commission or an end-user, that a person has committed a breach referred to in section 156A(1)(q)
2: The High Court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part.
3: Sections 88 88A 1986 No 5 s 81 Section 156MD inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Enforcement of determinations, approved codes, and
Subpart 2 inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Subpart 2 heading amended 1 July 2011 section 84 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156N: Interpretation
In sections 156O to 156R enforceable matter
a: a determination made under section 27
b: a standard terms determination made under section 30M
c:
d: a designated multinetwork service determination made under section 39
e: an undertaking Part 2A
ea: an undertaking under Part 4AA
f: an approved code under Schedule 2
g: a registered undertaking under Schedule 3A party Part 2A 4AA Section 156N inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156N enforceable matter repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156N enforceable matter amended 1 July 2011 section 85(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156N enforceable matter inserted 1 July 2011 section 85(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156N party substituted 1 July 2011 section 85(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156O: Complaints of breach of enforceable matter
1: The following persons may make a written complaint to the Commission alleging a breach of an enforceable matter:
a: an access seeker or an access provider of a designated service or a specified service:
b: in the case of an undertaking under Part 2A 4AA
2: As soon as reasonably practicable after receiving a complaint, the Commission must consider the complaint to decide—
a: whether to take no action on the complaint; or
b: whether to take either or both of the following actions:
i: to amend the enforceable matter for the purpose of making a clarification (if the complaint relates, or appears to relate, to a dispute over the interpretation of the terms or conditions of the enforceable matter and the dispute has not previously been submitted to any dispute resolution procedure that is included in the enforceable matter):
ii: to take, or join another party in taking, enforcement action for the enforceable matter in the High Court under section 156P
3: In deciding whether to take the action referred to in subsection (2)(b)(i), the Commission must consult with interested parties.
4: In deciding whether to take the action referred to in subsection (2)(b)(ii), the Commission—
a: must consider,—
i: in the case of a complaint by a person referred to in subsection (1)(a), the purpose set out in section 18
ii: in the case of a complaint by a party relating to an undertaking under Part 2A section 69W
iii: in the case of a complaint by a party relating to an undertaking under Part 4AA section 156AC
b: may consider the financial means of the complainant.
5: For the purposes of subsection (2)(b)(i), section 58
6: The Commission must promptly give written notice to the complainant of the Commission's decision on the complaint.
7: Subsection (2)(b)(i) does not apply in the case of an undertaking under Part 2A 4AA Section 156O inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156O(1) substituted 1 July 2011 section 86(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(1)(b) substituted 30 November 2011 section 36 section 67(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(4) substituted 1 July 2011 section 86(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(4)(a)(ii) substituted 30 November 2011 section 36 section 67(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(7) substituted 1 July 2011 section 86(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156P: Enforcement by High Court
1: An enforceable matter may be enforced by a party or the Commission, or both, filing it in the prescribed form in the Wellington Registry of the High Court.
2: The Commission may,—
a: for a breach of a determination made under section 27 section 30M section 156O
b: for a breach of a designated multinetwork service determination, an approved code, a registered undertaking, an undertaking under Part 2A 4AA section 156O
3: An enforceable matter filed in the High Court under subsection (1) is enforceable as a judgment of the High Court in its civil jurisdiction.
4: An enforceable matter is enforceable in accordance with subsection (3) during the period in which the matter continues in force.
5: A party who has filed a determination under subsection (1) must file in the prescribed form in the High Court any clarification of the determination under section 58 section 59 Section 156P inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156P(2)(b) amended 1 July 2011 section 87 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156Q: Remedies for breach of enforceable matter
1: This section applies if an enforceable matter is filed in the High Court under section 156P(1)
2: On the application of the Commission, the High Court may, in addition to any other remedies available to the court, order any person to pay to the Crown any pecuniary penalty that the court determines to be appropriate if satisfied that—
a: the person has committed a breach of the enforceable matter; and
b: the amount of any compensatory damages that the court can award against that person for the breach is less than the value of any commercial gain resulting from the breach.
3: The standard of proof in any proceedings under this section is the standard of proof that applies in civil proceedings.
4: Proceedings under this section may be commenced within 3 years after the matter giving rise to the breach was discovered or ought reasonably to have been discovered. Section 156Q inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156R: Limit on amount of pecuniary penalty
The amount of any pecuniary penalty imposed under section 156Q(2) Section 156R inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
5: Miscellaneous
157AA: Minister must review regulatory framework
Section 157AA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
157: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: prescribing matters in respect of which fees are payable under this Act and the amounts of those fees:
b: authorising the Commission in its discretion, or on any grounds that may be prescribed, to refund, in whole or in part, any prescribed fee that has been paid under this Act:
c: prescribing forms for the purposes of this Act:
ca: prescribing the form in which a civil infringement notice must be served under section 156D
cb: prescribing the amount of the pecuniary penalty that must be specified in a civil infringement notice under section 156D(2)(b)
cc: prescribing the time within and the manner in which a written objection to a civil infringement notice must be made under section 156E
cd: prescribing any other information that a notice published by the Commission under section 156K
ce: prescribing the procedures or minimum standards to be followed by a consumer complaints adjudicator in dealing with complaints under a consumer complaints system:
cf: specifying the time frames within which the procedures or minimum standards prescribed under paragraph (ce) must be followed:
cg: prescribing requirements and other matters concerning the operation and administration of a consumer complaints system:
ch: setting out minimum requirements for emergency call services and specifying which persons are subject to those requirements:
ci: prescribing matters for the purposes of the copper withdrawal code:
d: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 157(1)(ca) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(cb) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(cc) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(cd) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(ce) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(cf) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(cg) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(ch) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)(ci) inserted 13 November 2018 section 11 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 157(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
158: Enactments amended
Section 158 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
159: Certain provisions in 1987 Act repealed
Section 159 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
160: Transitional provision for declarations made under section 2A of 1987 Act
1: Despite the repeal of section 2A section 159
a: in the case of a declaration made by Order in Council, by the Governor-General by Order in Council made on the recommendation of the Minister; or
b: in the case of a declaration made by the Minister, by the Minister by notice
2: The Minister must make a recommendation under subsection (1)(a) or revoke a declaration under subsection (1)(b) (as the case may be) if the Minister is satisfied that the network operator has ceased to provide—
a: facilities for telecommunication (other than facilities used exclusively for broadcasting)
b: facilities for broadcasting to 500 or more other persons that enable programmes to be transmitted along a line or lines to each of those persons.
3: The following are secondary legislation ( see Part 3
a: an order under subsection (1)(a):
b: a notice under subsection (1)(b). 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 subsection (1)(a). Legislation Act 2019 requirements for secondary legislation made under subsection (1)(a) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under subsection (1)(b). Legislation Act 2019 requirements for secondary legislation made under subsection (1)(b) Publication The maker must publish it in the Gazette LA19 ss 73 74(1)(a) cl 14 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 160(1)(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 160(2)(a) amended 13 November 2018 section 39(11) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 160(3) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
161: Transitional provision relating to repeal of section 5C of 1987 Act
Section 161 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
6: Fibre fixed line access services
Part 6 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
1: General
Subpart 1 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
162: Purpose
The purpose of this Part is to promote the long-term benefit of end-users in markets for fibre fixed line access services by promoting outcomes that are consistent with outcomes produced in workably competitive markets so that regulated fibre service providers—
a: have incentives to innovate and to invest, including in replacement, upgraded, and new assets; and
b: have incentives to improve efficiency and supply fibre fixed line access services of a quality that reflects end-user demands; and
c: allow end-users to share the benefits of efficiency gains in the supply of fibre fixed line access services, including through lower prices; and
d: are limited in their ability to extract excessive profits. 1986 No 5 s 52A Section 162 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
163: Overview
1: In this Part,—
a: subpart 1 contains general provisions and defines terms used in this Part:
b: subpart 2
c: subpart 3
d: subpart 4
e: subpart 5
f: subpart 6
g: subpart 7
h: subpart 8
i: subpart 9
j: subpart 10
2: This section is intended only as a guide to the general scheme and effect of this Part. 1986 No 5 ss 52 52B Section 163 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
164: Interpretation
1: In this Part, unless the context otherwise requires,— anchor service section 227 claw-back section 165 contract price Crown financing direct fibre access service section 228 first regulatory period section 207 information disclosure requirement
a: applies to a regulated fibre service provider who is prescribed in regulations made under section 226
b: is specified in a section 170 input methodology section 176 as referred to in section 180 point-to-multipoint layer 1 service section 156AB price
a: means 1 or more of individual prices, aggregate prices, or revenues (whether in the form of specific numbers, or in the form of formulas by which specific numbers are derived); and
b: includes any related terms of payment publicly disclose section 170 quality dimensions section 170 determination section 170 UFB partner section 156AB unbundled fibre service section 229
2: In this Part, the test for related parties is the same as the test in section 69U Section 164 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 164(1) input methodology amended 28 October 2021 section 3 Secondary Legislation Act 2021
165: Meaning and application of claw-back
1: A reference to the Commission applying claw-back
a: requiring a regulated fibre service provider to lower its prices on a temporary basis in order to allow end-users to be compensated for some or all of any over-recovery that occurred under the prices previously charged by the regulated fibre service provider:
b: allowing a regulated fibre service provider to recover some or all of any shortfall in its revenues that occurred under the prices previously charged by the regulated fibre service provider.
2: If the Commission requires a regulated fibre service provider to lower its prices, it must also require that the lowering of prices must be spread over time in order to minimise undue financial hardship to the regulated fibre service provider.
3: If the Commission allows a regulated fibre service provider to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to end-users. 1986 No 5 s 52D Section 165 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
166: Matters to be considered by Commission and Minister
1: This section applies if the Commission or the Minister is required under this Part to make a recommendation, determination, or decision.
2: The Commission or Minister must make the recommendation, determination, or decision that the Commission or Minister considers best gives, or is likely to best give, effect—
a: to the purpose in section 162
b: to the extent that the Commission or Minister considers it relevant, to the promotion of workable competition in telecommunications markets for the long-term benefit of end-users of telecommunications services. Section 166 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Regulating fibre fixed line access services
Subpart 2 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
167: Regulation of fibre fixed line access services
1: Fibre fixed line access services are regulated as provided for by this Part.
2: A regulated fibre service provider must comply with—
a: the requirements of this Part that apply to the regulated fibre service provider; and
b: every section 170
3: The following apply in relation to a regulated fibre service provider on and after the date on which the provider is obliged to comply with this Part or (as the case requires) with a section 170
a: sections 212 to 218
b: sections 88 88A 90
4: The Commission may exercise any of its powers under this Act for the purpose of monitoring compliance by regulated fibre service providers with regulation under this Part. 1986 No 5 ss 52F 54E Section 167 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
168: Information disclosure regulation
Fibre fixed line access services supplied by a regulated fibre service provider who is prescribed in regulations made under section 226 see subpart 4 Section 168 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
169: Price-quality regulation
Fibre fixed line access services supplied by a regulated fibre service provider who is prescribed in regulations made under section 226 see subpart 5 Section 169 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
170: Determinations by Commission under this section
1: The Commission must make determinations under this section specifying how 1 or both of the following apply to regulated fibre service providers:
a: information disclosure regulation:
b: price-quality regulation.
2: Determinations must—
a: set out, for each type of regulation, the requirements that apply to each regulated fibre service provider; and
b: set out any time frames (including the regulatory periods) that must be complied with or that apply; and
c: specify the input methodologies that apply; and
d: be consistent with this Part.
3: It is not necessary for a single determination to address all matters relating to fibre fixed line access services, or to a regulated fibre service provider, and different parts of any determination may come into effect at different times.
4: A determination made under this section may require a regulated fibre service provider to comply with the requirements set out in any other determination that has been made under this section in respect of fibre fixed line access services.
5: A determination under this section and an amendment to a determination are secondary legislation ( see Part 3
6: The Commission must, as soon as practicable after making a determination under this section, give to each regulated fibre service provider to whom the determination relates notice of the determination and where it is available. 1986 No 5 s 52P 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 • give public notice in accordance with section 6 • comply with subsection (6) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 170 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 170(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 170(6) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
171: Determinations must reflect actual costs of Crown financing
1: This section applies if a section 170
2: The Commission must ensure that the maximum revenues, or the maximum price or prices, reflect, in respect of any Crown financing, the actual financing costs incurred by the provider (or a related party) in the regulatory period to which the determination applies. Section 171 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
172: When Commission must make initial section 170 determinations
1: The Commission must, after the date on which the relevant input methodologies are determined under section 178 section 170
a: how price-quality regulation applies to regulated fibre service providers during the first regulatory period; and
b: how information disclosure regulation applies to regulated fibre service providers from the start of the first regulatory period.
2: A section 170 Section 172 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
173: Amendment of section 170 determination
1: A section 170
2: As soon as practicable after making an amendment, the Commission must give to each provider to whom the determination relates notice of the amendment and where it is available.
3:
4: 1986 No 5 s 52Q Section 173 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 173(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 173(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 173(4) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
3: Input methodologies
Subpart 3 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Input methodologies Heading inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
174: Purpose of input methodologies
The purpose of input methodologies is to promote certainty for regulated fibre service providers, access seekers, and end-users in relation to the rules, requirements, and processes applying to the regulation, or proposed regulation, of fibre fixed line access services under this Part. 1986 No 5 s 52R Section 174 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
175: How input methodologies apply
A relevant input methodology relating to the supply of fibre fixed line access services must be applied—
a: by each relevant regulated fibre service provider in accordance with the relevant section 170
b: by the Commission in recommending, deciding, or determining—
i: how regulation under this Part should apply to fibre fixed line access services; or
ii: the prices or quality standards applying to fibre fixed line access services. 1986 No 5 s 52S Section 175 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
176: Matters covered by input methodologies
1: The input methodologies relating to fibre fixed line access services must include, to the extent applicable to the type of regulation under consideration,—
a: methodologies for evaluating or determining the following matters in respect of the supply of the fibre fixed line access services:
i: cost of capital:
ii: valuation of assets, including depreciation, and treatment of revaluations:
iii: allocation of common costs (for example, between activities, businesses, access seekers, regulated services, or geographic areas):
iv: treatment of taxation; and
b: quality dimensions; and
c: regulatory processes and rules, such as—
i: the specification and definition of prices, including identifying any costs that can be passed through to prices (which may not include the legal costs of any appeals against input methodology determinations under this Part); and
ii: identifying circumstances in which a price-quality path may be reconsidered within a regulatory period; and
d: methodologies for capital expenditure projects, including the following:
i: requirements that must be met by the regulated fibre service provider, including the scope and specificity of information required, the extent of independent verification and audit, and the extent of consultation and agreement with other parties (including access seekers or end-users); and
ii: the criteria the Commission will use to evaluate capital expenditure proposals; and
iii: time frames and processes for evaluating capital expenditure proposals, including what happens if the Commission does not comply with those time frames.
2: Every input methodology must, as far as is reasonably practicable,—
a: set out the matters listed in subsection (1) in sufficient detail so that each affected regulated fibre service provider is reasonably able to estimate the material effects of the methodology on the provider; and
b: set out how the Commission intends to apply the input methodology to fibre fixed line access services; and
c: be consistent with the other input methodologies that relate to fibre fixed line access services.
3: Any methodologies referred to in subsection (1)(a)(ii) that relate to establishing the initial value of fibre assets (as defined in section 177 1986 No 5 ss 52T 54S Section 176 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
177: Initial value of fibre assets
1: The initial value of a fibre asset is calculated by—
a: taking the cost—
i: incurred by a regulated fibre service provider in constructing or acquiring the fibre asset, net of specified capital contributions; or
ii: if the fibre asset was owned by Chorus before 1 December 2011, recorded by Chorus for the fibre asset in its published general purpose financial statements as of 1 December 2011; and
b: adjusting that cost for accumulated depreciation and impairment losses (if any) recognised by the regulated fibre service provider (ignoring any accounting adjustment for Crown financing), as at the implementation date, under generally accepted accounting practice in New Zealand.
2: Each regulated fibre service provider is treated, as at the implementation date, as owning a fibre asset with an initial value equal to the financial losses, as determined by the Commission, incurred by the provider in providing fibre fixed line access services under the UFB initiative for the period starting on 1 December 2011 and ending on the close of the day immediately before the implementation date.
3: In determining the financial losses under subsection (2), the Commission—
a: must take into account any accumulated unrecovered returns on investments made by the provider under the UFB initiative; and
b: in respect of any Crown financing provided in connection with those investments, must refer to the actual financing costs incurred by the provider (or a related party).
4: It is not the intention of subsections (2) and (3) that regulated fibre service providers should be protected from all risk of not fully recovering those financial losses through prices over time.
5: To avoid doubt, the initial value of a fibre asset determined under this section includes the costs incurred by the provider in relation to the asset—
a: as a direct result of meeting specific requirements of the UFB initiative; and
b: for both standard connections and non-standard connections.
6: In this section,— accumulated unrecovered returns fibre asset
a: constructed or acquired by a regulated fibre service provider; and
b: employed in the provision of fibre fixed line access services (whether or not the asset is also employed in the provision of other services) specified capital contribution
a: means a capital contribution received by a regulated fibre service provider from 1 or more of the following:
i: an access seeker:
ii: an end-user:
iii: any other person, as determined by the Commission; but
b: does not include any Crown financing standard connection non-standard connection section 155ZU Section 177 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
178: When input methodologies must be determined
1: The Commission must, not later than the implementation date, determine the input methodologies referred to in section 176
2: The Commission may, at any time after the implementation date, determine further input methodologies for fibre fixed line access services. 1986 No 5 s 52U Section 178 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
179: Commission process for determining input methodologies
1: When the Commission begins work on an input methodology, it must give public notice of its intention to do so that—
a: outlines the process that will be followed; and
b: sets out the proposed time frames.
2: During the course of its work on an input methodology, the Commission—
a: must give public notice of the draft methodology; and
b: must give interested persons a reasonable opportunity to give their views on that draft methodology; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
3: Any work done or action taken (including any consultation) by the Commission on input methodologies before this section commences may be taken into account as part of the work required to be done by the Commission to comply with the requirements of subsections (1) and (2). 1986 No 5 s 52V Section 179 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
180: Status of input methodologies, amendments, and revocations
1: The following are secondary legislation ( see Part 3
a: an input methodology:
b: an amendment to an input methodology:
c: the revocation by the Commission of an input methodology.
2: The secondary legislation must be published under the Legislation Act 2019
a: if it is made by the Commission, within 10 working days after the Commission makes its determination; or
b: if it is made by the High Court on appeal, within 10 working days after the Commission receives a copy of the High Court’s decision.
3: If an input methodology or amendment is made by the High Court on appeal, the Legislation Act 2019
4: When a methodology or an amendment (but not a revocation) is published, the Commission must publish the reasons for determining the methodology, or for amending it, on the Commission’s Internet site. 1986 No 5 s 52W The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (1). Legislation Act 2019 requirements for secondary legislation referred to in subsection (1) Publication The maker must: LA19 ss 73 74(1)(a) cl 14 • give public notice in accordance with section 6 • comply with subsection (4) A statement of the maker’s reasons for making the secondary legislation must be published with it 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 180 replaced 28 October 2021 section 3 Secondary Legislation Act 2021
181: Changes to input methodologies
1: If the Commission proposes to amend an input methodology to make a material change, section 179
2: The Commission may amend an input methodology to make a non-material change without complying with section 179
3: If the Commission proposes to revoke an input methodology, the Commission—
a: must give public notice of its intention to do so that—
i: outlines the process that will be followed; and
ii: sets out the proposed time frames; and
b: must give interested persons a reasonable opportunity to give their views on the proposed revocation; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
4: See also section 180 1986 No 5 s 52X Section 181 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 181(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
182: Review and date of publication of input methodologies
1: The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at intervals of no more than 7 years.
2: The date of publication Legislation Act 2019
3: Section 179
4: See also section 180 1986 No 5 s 52Y Section 182 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 182(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 182(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Appeals against input methodology determinations Heading inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
183: Appeals against input methodology determinations
1: Any person who gave views on an input methodology determination to the Commission as part of the process under section 179
2: In this section and section 184 input methodology determination
a: the initial determination of an input methodology:
b: any determination by the Commission that amends or revokes the input methodology:
c: any determination by the Commission of an input methodology after a review of the input methodology.
3: In determining an appeal against an input methodology determination, the court may do any of the following:
a: decline the appeal and confirm the input methodology, or the revocation of the input methodology, set out in the determination:
b: allow the appeal by—
i: amending the input methodology; or
ii: revoking the input methodology and substituting a new one; or
iii: referring the input methodology determination back to the Commission with directions as to the particular matters that require amendment; or
iv: if the revocation of an input methodology is not confirmed, confirming that the input methodology still applies.
4: The court may exercise its powers under subsection (3)(b) only if it is satisfied that the amended, substituted, or confirmed input methodology is (or will be, in the case of subsection (3)(b)(iii)) materially better in—
a: meeting the purpose of this Part or the purpose in section 174
b: to the extent that the court considers it relevant, promoting workable competition in telecommunications markets for the long-term benefit of end-users of telecommunications services.
5: If the court allows an appeal, the Commission may seek clarification from the court on any matter for the purpose of implementing the court’s decision.
6: There is a right of appeal under section 97 1986 No 5 s 52Z Section 183 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
184: Process for appeals
1: An appeal under section 183(1) the input methodology is published
2: The appeal must be by way of rehearing and must be conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal.
3: The High Court must sit with 2 lay members (unless the court considers that only 1 is required).
4: Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77
5: Section 77 1986 No 5 s 52ZA Section 184 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 184(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021
185: Input methodology applies pending outcome of appeal
1: The High Court may not stay the application of section 175
2: Section 175 1986 No 5 s 53 Section 185 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Information disclosure regulation
Subpart 4 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
186: Purpose of information disclosure regulation
The purpose of information disclosure regulation is to ensure that sufficient information is readily available to interested persons to assess whether the purpose of this Part is being met. 1986 No 5 s 53A Section 186 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
187: Effect of being subject to information disclosure regulation
1: A regulated fibre service provider who is subject to information disclosure regulation must—
a: publicly disclose information in accordance with the information disclosure requirements set out in the relevant section 170
b: supply to the Commission a copy of all information disclosed in accordance with the section 170
c: supply to the Commission, in accordance with a written notice by the Commission, any further statements, reports, agreements, particulars, or other information required for the purpose of monitoring the regulated fibre service provider’s compliance with the section 170
2: If a regulated fibre service provider is subject to information disclosure regulation, the Commission—
a: may monitor and analyse all information disclosed in accordance with the information disclosure requirements; and
b: must, as soon as practicable after any information is publicly disclosed, publish (on the Commission’s Internet site
3: To avoid doubt, the Commission may, as part of a summary and an analysis, include an analysis of how effective the information disclosure requirements imposed on the regulated fibre service providers are in promoting the purpose in section 162
4: In complying with subsection (2)(b), the Commission must ensure that satisfactory provision exists to protect the confidentiality of any information that may reasonably be regarded as confidential or commercially sensitive. 1986 No 5 s 53B Section 187 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 187(2)(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021
188: Section 170 determination to set out information disclosure requirements
1: A section 170
a: the regulated fibre service providers to which it applies:
b: the information to be disclosed:
c: the manner in which the information is to be disclosed:
d: the form of disclosure:
e: when, and for how long, information must be disclosed:
f: the input methodologies that apply:
g: any other methodologies that are required in the preparation or compilation of the information.
2: Information required to be disclosed may include (without limitation) 1 or more of the following:
a: financial statements (including projected financial statements):
b: asset values and valuation reports:
c: prices, terms and conditions relating to prices, and pricing methodologies:
d: contracts:
e: transactions with related parties:
f: financial and non-financial performance measures:
g: plans and forecasts, including (without limitation) plans and forecasts about demand, investments, prices, revenues, quality and service levels, capacity and spare capacity, and efficiency improvements:
h: asset management plans:
i: quality performance measures and statistics:
j: assumptions, policies, and methodologies used or applied in these or other areas:
k: consolidated information that includes information about unregulated services, in which case section 189
l: information related to 1 or more parts of a fibre network.
3: The section 170
a: require disclosed information, or information from which disclosed information is derived (in whole or in part), to be verified by statutory declaration:
b: require independent audits of disclosed information:
c: require the retention of data on which disclosed information is based, and associated documentation:
d: exempt any person or class of persons, or provide for exemptions, from any requirements of the determination, and provide for the revocation of exemptions:
e: provide for transitional provisions:
f: impose any other requirements that the Commission considers necessary or desirable to promote the purpose of information disclosure regulation.
4: The section 170
5: If a section 170 determination authorises a person to grant exemptions referred to in subsection (3)(d),—
a: an instrument granting or revoking an exemption is secondary legislation ( see Part 3
b: the regulations must contain a statement to that effect. 1986 No 5 s 53C The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)(a) Publication If the section 170 LA19 ss 69 73 74 If the section 170 Legislation (Publication) Regulations 2021 Presentation The Minister must present it to the House of Representatives, unless it is excluded by section 114(2) clause 32 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives, unless it is excluded by section 115 LA19 ss 115 116 This note is not part of the Act. Section 188 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 188(5) inserted 28 October 2021 regulation 67 Legislation Act (Amendments to Legislation) Regulations 2021
189: Consolidated information may also be required
1: The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to fibre fixed line access services.
2: A section 170
3: If a regulated fibre service provider provides services that are not subject to regulation under this Part ( other services
a: consolidated financial statements, and any other information referred to in section 188
b: consolidated financial statements, and any other information referred to in section 188
c: reconciliation of information provided under paragraphs (a) and (b) with information disclosed in accordance with information disclosure requirements applying to the fibre fixed line access services; and
d: reconciliation of information disclosed under Part 4
4: If a regulated fibre service provider supplies goods or services that are regulated under Part 4 1986 No 5 s 53D Section 189 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
190: Charge for providing copies to public
1: A person who is required, by a section 170
2: The charge must be no more than is reasonably required to recover the costs of providing those copies. 1986 No 5 s 53E Section 190 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
191: Limited exception to obligation to apply input methodologies
1: Despite section 175
2: However, to avoid doubt, subsection (1)
a: section 187(2)
b: section 188(2) 1986 No 5 s 53F Section 191 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
5: Price-quality regulation
Subpart 5 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
192: Purpose of price-quality regulation
The purpose of price-quality regulation is to regulate the price and quality of fibre fixed line access services provided by regulated fibre service providers. 1986 No 5 s 53K Section 192 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
193: Effect of being subject to price-quality regulation
1: A regulated fibre service provider who is subject to price-quality regulation in respect of fibre fixed line access services must—
a: apply the price-quality paths set by the Commission in a section 170
b: comply with sections 198 to 201
2: For the purpose of monitoring compliance with this section, the Commission may, in addition to exercising its powers under section 98
a: a written statement that states whether the provider has complied with the price-quality paths applying to that provider:
b: a report on the written statement referred to in paragraph (a) that is signed by an auditor in accordance with any form specified by the Commission:
c: sufficient information to enable the Commission to properly determine whether a price-quality path has been complied with:
d: a certificate, in the form specified by the Commission and signed by at least 1 director of the provider, confirming the truth and accuracy of any information provided under this section. 1986 No 5 ss 53L 53N Section 193 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
194: Section 170 determination to set out price-quality path requirements
1: A section 170
2: A price-quality path must specify the following:
a: the regulatory period to which it applies:
b: in relation to prices, 1 or both of the following:
i: the maximum price or prices that may be charged by a regulated fibre service provider:
ii: the maximum revenues that may be recovered by a regulated fibre service provider:
c: the quality standards that must be met by a regulated fibre service provider:
d: the date or dates on which the price-quality path (or any part of it) takes effect:
e: the date or dates by which compliance must be demonstrated in accordance with section 193(2)
3: A price-quality path may include incentives for a regulated fibre service provider to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:
a: penalties by way of a reduction in the provider’s maximum prices or revenues based on whether, or by what amount, the provider fails to meet the required quality standards:
b: rewards by way of an increase in the provider’s maximum prices or revenues based on whether, or by what amount, the provider meets or exceeds the required quality standards:
c: compensation schemes that set minimum standards of performance and require the provider to pay prescribed amounts of compensation if it fails to meet those standards:
d: reporting requirements, including special reporting requirements in asset management plans, if the provider fails to meet the quality standards.
4: Quality standards may, subject to any relevant input methodologies, be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulas).
5: A price-quality path does not apply to a regulated fibre service provider until the date specified in the relevant section 170 1986 No 5 ss 53M 53O Section 194 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
195: Maximum revenues specified in initial price-quality paths
1: Despite section 194(2)(b)
a: specify the maximum revenues that may be recovered by a regulated fibre service provider; and
b: not specify the maximum price or prices that may be charged by a regulated fibre service provider.
2: In this section and section 196 reset date section 225 Section 195 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
196: Wash-up mechanism for maximum revenues specified in initial price-quality paths
1: This section applies when the Commission specifies, in the price-quality paths for each regulatory period that starts before the reset date (except the first regulatory period), the maximum revenues that may be recovered by a regulated fibre service.
2: The Commission must, in calculating the maximum revenues, apply a wash-up mechanism that provides for any over-recovery or under-recovery of revenue by the regulated fibre service provider during the previous regulatory period to be applied in a manner that is equivalent in present value terms (as calculated in the manner that the Commission thinks fit) over 1 or more future regulatory periods.
3: To avoid doubt, the Commission may, but is not required to, apply the wash-up mechanism referred to in subsection (2) in a price-quality path for a regulatory period that starts on or after the reset date. Section 196 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
197: Smoothing revenues and prices
1: This section applies when the Commission specifies maximum prices or maximum revenues for the purpose of section 194(2)(b)
2: The Commission must calculate the maximum price or revenue in a manner that is equivalent in present value terms (as calculated in the manner that the Commission thinks fit) over 2 or more regulatory periods (for example, by altering depreciation) if, in the Commission’s opinion, it is necessary or desirable to do so to minimise any undue financial hardship to a regulated fibre service provider or to minimise price shocks to end-users. Section 197 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
198: Anchor services
1: A regulated fibre service provider who is subject to price-quality regulation must provide an anchor service if an anchor service has been declared.
2: The service must be provided—
a: in accordance with any prescribed description of the service; and
b: in accordance with any prescribed conditions; and
c: during any prescribed period for the service; and
d: at a price that is no greater than any prescribed maximum price. Section 198 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
199: Direct fibre access services
1: A regulated fibre service provider who is subject to price-quality regulation must provide a direct fibre access service if a direct fibre access service has been declared.
2: The service must be provided—
a: in accordance with any prescribed description of the service; and
b: in accordance with any prescribed conditions; and
c: during any prescribed period for the service; and
d: at a price that is no greater than any prescribed maximum price. Section 199 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
200: Unbundled fibre services
1: A regulated fibre service provider who is subject to price-quality regulation must provide an unbundled fibre service if an unbundled fibre service has been declared.
2: The service must be provided—
a: in accordance with any prescribed description of the service; and
b: in accordance with any prescribed conditions; and
c: during any prescribed period for the service; and
d: at a price that is no greater than any prescribed maximum price. Section 200 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
201: Geographically consistent pricing
A regulated fibre service provider who is subject to price-quality regulation must, regardless of the geographic location of the access seeker or end-user, charge the same price for providing fibre fixed line access services that are, in all material respects, the same. Section 201 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
202: Exceptions from section 201 for trials
1: Nothing in section 201
2: The provision of a service is a trial if the service—
a: is offered by the provider for no more than 1 year; and
b: is provided under an agreement with end-users that clearly states the end date for the service; and
c: is provided to no more than 1,000 end-users over the whole period in which it is offered. Section 202 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
203: Making new section 170 determination
1: Before the end of each regulatory period, the Commission must make a new section 170
2: In making a new section 170 section 194 1986 No 5 s 53P Section 203 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
204: What happens to price-quality path if input methodologies change
1: A price-quality path may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).
2: A price-quality path must be reopened by the Commission, and a new price-quality path made by amending the relevant section 170 section 173
a: an input methodology changes as a result of an appeal under section 183
b: had the changed methodology applied at the time the price-quality path was set, it would have resulted in a materially different path being set.
3: When making a new price-quality path under subsection (2), the Commission must apply claw-back. 1986 No 5 s 53ZB Section 204 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
205: Application of Commerce Act 1986
Part 2
a: a price for a fibre fixed line access service provided by a regulated fibre service provider if—
i: that service is subject to a prescribed maximum price under this Part (whether in this Part, in regulations made under this Part, or in a section 170
ii: the price is the same as the prescribed maximum price; and
b: any matter necessary for giving effect to the prescribed maximum price referred to in paragraph (a). Section 205 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
206: Modification of undertakings under section 156AD
1: A regulated service provider is not required to achieve price equivalence in relation to the supply of an unbundled layer 1 service to the extent that the service is an input to a relevant service.
2: This section applies—
a: on and after the implementation date; and
b: despite any undertaking entered into by a regulated fibre service provider in accordance with section 156AD(2)(c)
3: In this section,— layer 1 service section 156AB price equivalence section 156AB relevant service section 170 Section 206 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
6: Regulatory periods
Subpart 6 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
207: Regulatory periods
1: The first regulatory period starts on the implementation date and lasts for a period of 3 years.
2: The duration of subsequent regulatory periods must be determined by the Commission and must be between 3 and 5 years.
3: The Commission must notify the duration of each new regulatory period in a section 170 Section 207 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
7: Reviews
Subpart 7 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
208: Anchor services review
1: The Commission may, before the start of each regulatory period (including the first regulatory period), review whether, and how effectively, an anchor service meets the purpose of anchor services in subsection (7).
2: A review must consider the following in respect of an anchor service:
a: any prescribed description of the service:
b: any prescribed conditions that apply to the service:
c: any prescribed period for the service:
d: any prescribed maximum price for the service.
3: The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.
4: The Commission must make a recommendation to the Minister after a review for the purposes of section 227
5: The Commission must not recommend a change to the description of an anchor service unless the service (with the amended description) meets the purpose in subsection (7).
6: The Commission must not recommend a change to the prescribed maximum price of an anchor service unless,—
a: if the recommendation is made before the start of the first regulatory period, the recommended maximum price is based on the contract price for the service immediately before the implementation date, with an annual CPI adjustment mechanism; and
b: if the recommendation is made after the start of the first regulatory period, the recommended maximum price is a cost-based price.
7: The purpose of anchor services is—
a: to ensure that baseband equivalent voice and basic broadband services are available to end-users at reasonable prices; and
b: to act as an appropriate constraint on the price and quality of other fibre fixed line access services. Section 208 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
209: Price-quality review
1: The Commission may, on or after the date that is 3 years after the implementation date and at intervals of no less than 5 years thereafter, review how effectively the regulatory provisions in sections 195 199 200 section 162
2: A review must consider 1 or more of the following:
a: whether price-quality paths should, with effect from the start of a future regulatory period, continue to be required to specify the maximum revenues that may be recovered by a regulated fibre service provider ( see sections 195 196
b: whether any of the matters prescribed under section 228(2)
c: whether a point-to-multipoint layer 1 service supplied to end-users’ premises or buildings should be declared under section 229(1)
d: whether any of the matters prescribed under section 229(2)
3: The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.
4: The Commission must make a recommendation to the Minister following a review for the purposes of section 225 228 229
5: The Commission must not recommend a prescribed maximum price for an unbundled fibre service or a direct fibre access service unless the maximum price is a cost-based price. Section 209 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
210: Deregulation review
1: The Commission may, at any time after the implementation date, review how 1 or more fibre fixed line access services are regulated under this Part if the Commission has reasonable grounds to consider that those services—
a: should no longer be regulated under this Part; or
b: should no longer be subject to price-quality regulation under this Part.
2: For the purposes of subsection (1), the Commission may, without limitation, describe a service under review with reference to any 1 or more of the following:
a: the geographic area in which the service is supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service is supplied.
3: The Commission must, before the start of each regulatory period (except the first regulatory period), consider whether there are reasonable grounds to start a review.
4: A review may consider the following:
a: whether competition to 1 or more fibre fixed line access services has increased or decreased in a relevant market:
b: the impact of any increase or decrease on the ability of regulated fibre service providers to exercise substantial market power:
c: whether the purpose of this Part would be better met if 1 or more fibre fixed line access services—
i: were no longer regulated under this Part; or
ii: were no longer subject to price-quality regulation under this Part.
5: The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.
6: The Commission must make a recommendation to the Minister after a review. Section 210 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
211: Application of Schedule 3
Despite clause 1 Schedule 3 Section 211 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
8: Enforcement and miscellaneous provisions
Subpart 8 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
212: Pecuniary penalty for contravening information disclosure requirement
1: The High Court may, on application by the Commission, order any person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened any information disclosure requirement (as defined in section 164(1)
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) and section 214 contravening an information disclosure requirement
a: failing to disclose information required to be disclosed:
b: failing to disclose information in the form or within the time required:
c: disclosing information that is false or misleading under an information disclosure requirement.
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
4: In determining the amount of pecuniary penalty, the court must have regard to all relevant matters, including—
a: the nature and extent of the contravention; and
b: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence); and
c: whether the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
5: A regulated fibre service provider may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred. 1986 No 5 s 86 Section 212 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
213: Order requiring information disclosure requirement to be complied with
1: The High Court may, on application by the Commission, order a regulated fibre service provider to comply with an information disclosure requirement that applies to the provider.
2: An order under this section must specify the date by which, or period within which, the provider must comply with the requirement. 1986 No 5 s 86A Section 213 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
214: Offences relating to information disclosure regulation
1: A person commits an offence if—
a: the person, knowing that particular fibre fixed line access services are subject to information disclosure regulation, intentionally contravenes any information disclosure requirement relating to those services; or
b: the person is subject to an order under section 213
2: A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate. 1986 No 5 s 86B Section 214 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
215: Pecuniary penalty for contravening price-quality requirements
1: The High Court may, on application by the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened any price-quality requirement applying to fibre fixed line access services; or
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) and sections 216 to 218 contravening a price-quality requirement
a: refers to a requirement imposed—
i: by a determination made under section 170 Part 6
ii: by section 193(1)(b)
b: includes 1 or more of the following:
i: failing to comply with a requirement for prices, whether by charging a price for a service that is higher than the maximum price permitted, or by receiving more revenue than is permitted, or in any other way:
ii: failing to comply with any quality standards required under the price-quality regulation:
iii: failing to comply with any requirement in sections 198 to 201
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
4: In setting the amount of pecuniary penalty, the court must take into account all of the following matters:
a: the nature and extent of the contravention:
b: the nature and extent of any loss or damage suffered by any person as a result of the contravention:
c: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence):
d: whether or not the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
5: A regulated fibre service provider may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred. 1986 No 5 s 87 Section 215 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
216: Compensation for contravention of price-quality requirement
1: If the High Court orders a person to pay a pecuniary penalty under section 215 aggrieved person
2: An application for an order under this section may be made by the Commission or any aggrieved person.
3: The application must be made within 1 year of the date of the pecuniary penalty order.
4: The court may make an order under this section whether or not any aggrieved person is party to the proceedings.
5: In proceedings under this section, the court may make such orders as to cost as it thinks fit. 1986 No 5 s 87A Section 216 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
217: Offence relating to price-quality regulation
1: A person commits an offence if—
a: the person, knowing that particular fibre fixed line access services are subject to price-quality regulation, intentionally contravenes a price-quality requirement in respect of the services; or
b: the person is subject to an order under section 218(1)(b)
2: A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate. 1986 No 5 s 87B Section 217 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
218: Injunction and other orders relating to price-quality regulation
1: If the High Court is satisfied that fibre fixed line access services that are subject to price-quality regulation are being provided, or are likely to be provided, in contravention of any price-quality requirement applying with respect to those services, the court may do 1 or both of the following:
a: grant an injunction restraining any provider of those services from providing them in contravention of the price-quality requirement:
b: make an order requiring the provider to provide the services in accordance with the price-quality requirement applying to them.
2: An application for an injunction or order under this section may be made by any person. 1986 No 5 s 87C Section 218 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
219: Proceedings for pecuniary penalties
The following sections of the Commerce Act 1986
a: section 79A
b: section 79B sections 214 217 Section 219 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
220: Evidence not otherwise admissible
In the exercise of its jurisdiction under this Part, except in respect of criminal proceedings and proceedings for pecuniary penalties, the High Court may receive in evidence any statement, document, or information that would not be otherwise admissible but that may in its opinion assist it to deal effectively with the matter. 1986 No 5 s 79 Section 220 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
221: Powers of Commission under this Part
1: For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under this Act and section 98
a: consult any person the Commission considers may assist it:
b: investigate any of the following:
i: how effectively and efficiently a regulated fibre service provider is providing fibre fixed line access services:
ii: how any formula, methodology, or price-quality path being considered by the Commission may be applied, or how any formula, methodology, or price-quality provision determined or authorised by the Commission has been applied, in considering proposed prices, revenue, or quality standards:
iii: how any conditions relating to the quality of fibre fixed line access services may be, or are being, fulfilled:
c: examine, consider, or investigate any activity, cost, revenue, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previous 7 years:
d: use any information previously disclosed to the Commission under this Act or the Commerce Act 1986
e: by notice in writing, require any regulated fibre service provider—
i: to prepare and produce forecasts, forward plans, or other information; and
ii: to apply any methodology specified by the Commission in the preparation of forecasts, forward plans, or other information:
f: by notice in writing, require any specified person who the Commission has reason to believe may have information or documents relevant to the investigation, audit, or inquiry, at the time and place specified in the notice, to do 1 or both of the following:
i: produce or supply to the Commission documents and information in relation to the fibre fixed line access services, or the prices or operations of the person in respect of the services:
ii: answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
g: by notice in writing, require any regulated fibre service provider, at the time and place specified in the notice, to produce or supply to the Commission an expert opinion from an appropriately qualified person, or from a member of a class of appropriately qualified persons, as determined by the Commission in relation to the matters in paragraph (b), (c), (e), or (f)(i).
2: In this section, specified person
a: a regulated fibre service provider:
b: a person who used to be a regulated fibre service provider:
c: a retail service provider:
d: an agency associated with the supply of fibre fixed line access services. 1986 No 5 s 53ZD Section 221 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
222: Power to exempt disclosure of commercially sensitive information
1: The Commission may, on application, exempt any person, in respect of any information or class of information that the Commission considers to be commercially sensitive, from any obligation to make that information available to the public as part of the requirements of information disclosure regulation or price-quality regulation.
2: The Commission may grant the exemption on any terms and conditions that it thinks fit.
3:
4:
5: The Commission’s reasons for granting an exemption (including why it is appropriate) must be published together with the exemption.
6: The Commission must keep a list of all current exemptions made by it under this section and must make the list available—
a: for public inspection free of charge during normal office hours of the Commission at the offices of the Commission; and
b: on the Commission’s Internet site
7: The Commission may vary or revoke an exemption in the same way as it may grant the exemption, and this section applies with all necessary modifications.
8: The breach of a term or condition of an exemption is a breach of the obligation to which the exemption relates.
9: An exemption under this section, and any variation or revocation of it, is secondary legislation ( see Part 3 1986 No 5 s 53ZG 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 • give public notice in accordance with section 6 • comply with subsection (5) 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 is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 222 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 222(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 222(4) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 222(6)(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 222(9) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
223: Material may be incorporated by reference
Schedule 5
a: a section 170
b: an input methodology. 1986 No 5 s 53ZF Section 223 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
9: Appeals from Commission determinations
Subpart 9 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
224: Appeals in relation to Commission determinations
1: A regulated fibre service provider or any other person may appeal to the High Court under this subsection against any determination of the Commission under this Part, other than the following:
a: a section 170
b: an input methodology determination under subpart 3
2: An appeal against a section 170
3: A person may appeal to the High Court under this subsection on a question of law against any determination of the Commission under this Part (including a determination referred to in subsection (1)), except if the person has appealed, or is able to appeal, on the question of law against the determination under section 183
4: An appeal under this section must be made by giving notice of appeal within 20 working days after the date of the determination appealed against or within such further time as the court may allow.
5: Sections 77 93 to 97
6: To avoid doubt, a recommendation to the Minister by the Commission is not a determination for the purposes of this section. 1986 No 5 s 91 Section 224 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
10: Orders and regulations
Subpart 10 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
225: Order for reset date
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, declare a date to be the reset date for the purpose of sections 195 196
2: The power to make an order made under this section may be exercised only once.
3: The Minister must not recommend that an order be made under this section unless the Commission has, after a review under section 209
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 225 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 225(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
226: Persons subject to regulation under Part 6
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing a person who provides fibre fixed line access services as being subject to 1 or both of the following:
a: information disclosure regulation:
b: price-quality regulation.
2: Regulations made under this section must—
a: state the name of the person; and
b: describe the services in respect of which the person is subject to information disclosure regulation, price-quality regulation, or both.
3: For the purposes of subsection (2)(b), the regulations may, without limitation other than subsection (4)(b), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service is supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service is supplied.
4: The Minister must not recommend that regulations be made under this section unless—
a: the Commission has consulted with interested persons; and
b: the Commission has recommended to the Minister that the regulations be made.
5: Subsection (4) applies unless the Minister is recommending regulations to which either or both of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments.
6: The Minister must not recommend that regulations be made to prescribe a person as being subject to information disclosure regulation, price-quality regulation, or both unless the Commission has advised that it is satisfied that the person provides fibre fixed line access services in a market where the person can exercise a substantial degree of market power.
7: If, in accordance with regulations made under this section, a person is subject to information disclosure regulation or price-quality regulation (or both) in respect of 1 or more fibre fixed line access services, the regulations apply to any subsidiary of, or successor to, the person in respect of those services.
8: For the purposes of subsection (4)(a), the Commission has consulted with interested persons section 210(5)
9: In this section, a reference to a person who provides fibre fixed line access services
10: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 226 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 226(10) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
227: Anchor services
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring a fibre fixed line access service to be an anchor service.
2: The regulations may, in relation to the service, prescribe all or any of the following:
a: a description of the service; and
b: any conditions; and
c: the period during which a regulated fibre service provider who is subject to price-quality regulation must provide the service; and
d: the maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for providing the service.
3: For the purposes of subsection (2)(a), the regulations may, without limitation other than subsection (4), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service must be supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service must be supplied.
4: The Minister must not recommend that regulations be made under this section unless the Commission has, after a review under section 208
5: Subsection (4) applies unless the Minister is recommending regulations to which either or both of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments.
6: See clause 14
7: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 227 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 227(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
228: Direct fibre access services
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring a fibre fixed line access service to be a direct fibre access service.
2: The regulations may, in relation to a direct fibre access service, prescribe all or any of the following:
a: a description of the service; and
b: any conditions; and
c: the period during which a regulated fibre service provider who is subject to price-quality regulation must provide the service; and
d: the maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for providing the service.
3: For the purposes of subsection (2)(a), the regulations may, without limitation other than subsection (4), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service must be supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service must be supplied.
4: The Minister must not recommend that regulations be made under this section unless the Commission has, after a review under section 209
5: Subsection (4) applies unless the Minister is recommending regulations to which 1 or more of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments:
c: the regulations are allowed under subsection (6).
6: If a review has not been carried out under section 209
7: See clause 15
8: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 228 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 228(8) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
229: Unbundled fibre services
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring a point-to-multipoint layer 1 service supplied to end-users’ premises or buildings to be an unbundled fibre service.
2: The regulations may, in relation to an unbundled fibre service, prescribe all or any of the following:
a: a description of the service:
b: any conditions:
c: the period during which the service must be provided:
d: the maximum price that may be charged for the service, which must be a cost-based price.
3: For the purposes of subsection (2)(a), the regulations may, without limitation other than subsection (4), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service must be supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service must be supplied.
4: The Minister must not recommend that regulations be made under this section unless the Commission has, after a review under section 209
5: Subsection (4) applies unless the Minister is recommending regulations to which either or both of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments.
6: Despite subsection (1), the Minister must not recommend that a service be declared, before 1 January 2026, to be an unbundled fibre service if the service is provided over a fibre network developed as part of UFB 2 (as defined in section 156AB
7: See clause 16
8: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 229 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 229(8) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
230: Regulations under sections 228 and 229 may modify undertaking under section 156AD
1: This section applies if the Governor-General makes regulations under section 228 229
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, make further regulations to discharge an LFC from its obligation to supply a service under an undertaking entered into in accordance with section 156AD
3: For the purposes of subsection (2)
a: the geographic area in which the service is supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service is supplied.
4: In this section, LFC section 156AB
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 230 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 230(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
231: Specified points of interconnection
1: The Commission may, by public notice, prescribe points of interconnection for the purposes of establishing fibre handover points.
2: The notice may prescribe a point of interconnection by reference to 1 or more of the following:
a: a regulated fibre service provider’s network:
b: a geographical location:
c: the UFB initiative.
3: The Commission may amend or revoke a notice in the manner in which it was made.
4: However, the Commission must not amend a specified point of interconnection unless the amendment—
a: is for an appropriate technical purpose; and
b: is consistent with the purpose in section 162
5: The first notice made under this section—
a: must prescribe points of interconnection based on the points of interconnection that apply as at the close of 31 December 2019 under the UFB initiative; and
b: may prescribe additional points of interconnection.
6: Section 231 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 231(6) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
7: Consumer matters
Part 7 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
232: Interpretation
In this Part, unless the context otherwise requires,— consumer industry dispute resolution scheme
a: means—
i: the Telecommunications Dispute Resolution scheme established by the Forum; and
ii: any other dispute resolution scheme that has been set up by the telecommunications industry and deals with consumer complaints; but
b: excludes a dispute resolution scheme as defined in clause 2 scheme member scheme provider Section 232 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Retail service quality codes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
233: Purpose of retail service quality code
The purpose of a retail service quality code is to improve retail service quality to reflect the demands of end-users of telecommunications services. Section 233 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
234: Commission may issue guidelines
The Commission may issue guidelines to the telecommunications industry on any matters relating to retail service quality codes, including advice on what matters are appropriately dealt with by retail service quality codes. Section 234 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
235: Commission review of industry retail service quality codes
1: The Commission may, at any time, review an industry retail service quality code.
2: The Commission may require the following persons to provide the Commission with any information relevant to the industry retail service quality code under review:
a: the Forum:
b: service providers to whom the code applies.
3: After each review, the Commission must—
a: advise the Forum, the dispute resolution provider for the code (if any), and the Minister of any recommendations for improving the code and of any recommendations for creating a new code; and
b: advise the Minister of whether any previous recommendations have been implemented; and
c: advise the Minister of whether, in the Commission’s opinion,—
i: the code fails to achieve the purpose set out in section 233
ii: a Commission RSQ code would better achieve the purpose set out in section 233 Section 235 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
236: Commission retail service quality code
1: The Commission may make a retail service quality code in relation to the provision of 1 or more types of telecommunications service only if—
a: no industry retail service quality code has been made in relation to the service; or
b: an industry retail service quality code has been made in relation to the service, but in the Commission’s opinion—
i: the code fails to achieve the purpose set out in section 233
ii: a Commission RSQ code would better achieve the purpose set out in section 233
2: If the Commission intends to make a Commission RSQ code, the Commission must, before making the code, provide a report to the Minister containing the reasons for making the code and the provision of this section that applies.
3: A Commission RSQ code, and any amendment to or revocation of the code, is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 236 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 236(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
237: Contents of Commission retail service quality code
1: A Commission RSQ code must—
a: specify which telecommunications services it applies to; and
b: specify which telecommunications service providers it applies to; and
c: promote the purpose set out in section 233
2: A Commission retail service quality code may—
a: impose binding obligations on telecommunications service providers that provide retail telecommunications services covered by the code; and
b: contain any other provisions that are necessary or desirable. Section 237 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Commission 111 contact code Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
238: Commission 111 contact code
1: The Commission must make a code for the purpose of ensuring that vulnerable consumers, or persons on their behalf, have reasonable access to an appropriate means to contact the 111 emergency service in the event of a power failure.
2: The code must be made before the implementation date.
3: The code must—
a: specify which telecommunications services it applies to; and
b: require the providers of those services to inform consumers about the options available for vulnerable consumers; and
c: prescribe a process (or processes) for a consumer of those services, or a person on their behalf, to demonstrate that they—
i: are a vulnerable consumer; or
ii: will become a vulnerable consumer; and
d: require the providers of those services to supply vulnerable consumers, at no cost to the consumers, with an appropriate means for contacting the 111 emergency service that can be operated for the minimum period in the event of a power failure; and
e: specify the minimum period for the purposes of paragraph (d).
4: The code may do 1 or more of the following:
a: specify classes of people that must be considered vulnerable consumers:
b: specify appropriate means for vulnerable consumers, or persons on their behalf, to contact emergency services:
c: contain any other provisions that are necessary or desirable to achieve the purpose in subsection (1).
5: In this section,— minimum period specified telecommunications service vulnerable consumer
a: is at particular risk of requiring the 111 emergency service (for example, due to a known medical condition); and
b: does not have a means for contacting the 111 emergency service that can be operated for the minimum period in the event of a power failure.
6: A Commission 111 contact code, and any amendment to or revocation of the code, is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 238 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 238(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Process for making Commission codes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
239: Process for making or amending Commission code
1: In order to make a Commission code, the Commission must—
a: give public notice of the process that will be followed to make the code; and
b: consult with interested persons; and
c: give public notice of a draft code.
2: If the code is a Commission 111 contact code, interested persons
a: the New Zealand Police:
b: Fire and Emergency New Zealand:
c: the Director of Civil Defence Emergency Management:
d: every provider of an initial call answering point for the 111 emergency service.
3: A person is entitled to make submissions to the Commission not later than 30 working days after the date on which public notice of the draft code is given.
4: The Commission may make the code only if the Commission is satisfied that the draft code meets all the requirements set out in this Part.
5: The Commission may amend or revoke a code if the Commission considers that the code no longer meets all the requirements set out in this Part.
6: The same procedure that applies to making a code in subsections (1) to (4) must be followed to make an amendment or a revocation, with any necessary modifications.
7: Section 239 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 239(7) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Dispute resolution schemes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
240: Dispute resolution scheme
1: The dispute resolution scheme for all Commission codes is—
a: an industry dispute resolution scheme; or
b: if Part 4B comes into force in accordance with section 156S
i: that is appointed under that Part; and
ii: that the Minister declares under this section to be the dispute resolution scheme for Commission codes.
2: A scheme provider for an industry dispute resolution scheme must, on request by the Minister or the Commission, provide information on matters relating to any information or reports relevant to the administration of a Commission code.
3: Sections 241 to 245 Section 240 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
241: Disputes may be referred to industry dispute resolution scheme
1: A dispute between a consumer and a telecommunications service provider about their rights and obligations under a Commission code may be referred to an industry dispute resolution scheme by any of the parties to the dispute.
2: Disputes that may, depending on the relevant Commission code, be referred to an industry dispute resolution scheme include disputes about the following:
a: installation times:
b: how consumer complaints are handled:
c: other matters provided for in the code or by the industry dispute resolution scheme. 2001 No 103 s 155ZI Section 241 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
242: Determinations binding on scheme members and certain other parties
1: This section applies if a dispute is referred to an industry dispute resolution scheme and a determination is made on the dispute under the rules of the scheme.
2: The determination is binding on each party to the dispute who is a scheme member (except to the extent that it may be modified by the District Court under section 245(3)
3: The determination is binding on each party to the dispute who is not a scheme member, except if one of those parties lodges an appeal against the determination under section 243 2001 No 103 s 155ZJ Section 242 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
243: Appeals against determinations
1: A consumer or any other party to the dispute who is not a scheme member may, within the time allowed under section 244(1)
2: The court may confirm, modify, or reverse the determination appealed against.
3: The decision of the court on the appeal is binding on all persons named as parties in the determination, and there is no right of appeal against the court’s decision. 2001 No 103 s 155ZK Section 243 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
244: Procedure on appeal
1: An appeal under section 243
a: an appeal must be brought within 5 working days after the determination appealed against is notified to the party wanting to lodge the appeal, or any further time the court allows on an application made before or after that period ends; and
b: the industry dispute resolution scheme, as the maker of the determination appealed against, is not entitled to be represented at the hearing of the appeal; and
c: the court on appeal may not refer the determination back to the industry dispute resolution scheme for any purpose.
2: The court may hear all evidence provided and representations made by or on behalf of any party to the appeal that the court considers relevant to the appeal, whether or not the evidence would otherwise be admissible in a court. 2001 No 103 s 155ZL Section 244 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
245: Compliance with rules, binding settlements, and determinations
1: Members of an industry dispute resolution scheme and each party to a dispute that is referred to the scheme must comply with the rules of the scheme.
2: On an application of the scheme provider for an industry dispute resolution scheme, the District Court may require a scheme member or other person who is a party to a dispute to do any of the following:
a: comply with the rules of the scheme:
b: comply with the terms of a binding settlement or determination made under the rules of the scheme.
3: If the District Court is satisfied that the terms of a binding settlement or determination are manifestly unreasonable, the court’s order under subsection (2)(b) may modify the terms of the binding settlement or determination, but only to the extent that the modification results in a binding settlement or determination that could have been made under the industry dispute resolution scheme.
4: If an order requiring a scheme member to comply with a binding settlement includes a requirement that the member pay an amount of money to a person, that order (or part of the order) may be enforced as if it were a judgment by the District Court for the payment of a sum of money.
5: A reference in this section to a scheme member includes a reference to a person who was a member of the industry dispute resolution scheme at the relevant time but is no longer a member at the time of the application or order. 2001 No 103 s 155ZM Section 245 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Commission review of industry dispute resolution schemes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
246: Commission review of industry dispute resolution schemes
1: The Commission must review each industry dispute resolution scheme at least once every 3 years.
2: As part of a review of a scheme, the Commission may, without limitation, consider the following:
a: the purpose of the scheme:
b: the scheme provider:
c: the dispute resolution provider for the scheme:
d: the effectiveness of the scheme in resolving complaints by consumers against service providers:
e: the adequacy of the scheme rules:
f: whether the scheme rules comply with the following principles:
i: accessibility:
ii: independence:
iii: fairness:
iv: accountability:
v: efficiency:
vi: effectiveness:
g: whether any recommendations for improving the scheme made under subsection (4) have been implemented:
h: the purpose of the dispute resolution provider for the scheme:
i: the procedures that are used for receiving, investigating, and resolving complaints:
j: how promptly complaints are dealt with.
3: The Commission may require the following persons to provide the Commission with any information relevant to the matters included in subsection (2):
a: the dispute resolution provider for the scheme:
b: the scheme provider:
c: a scheme member.
4: After each review, the Commission must provide a report to the scheme provider on any recommendations for improving the scheme and when the recommendations should be implemented.
5: If the Commission considers that any recommendations made under subsection (4) have not been implemented satisfactorily, the Commission must provide a report to the Minister on—
a: the recommendations for improving the scheme made under subsection (4); and
b: whether those recommendations have been implemented; and
c: whether, in the Commission’s opinion,—
i: the scheme fails to achieve the purpose set out in section 247
ii: the dispute resolution provider for the scheme fails to achieve the purpose set out in section 248
6: If the Commission proposes to report, under subsection (5)(c), that a scheme fails to achieve the purpose set out in section 247 section 248
a: the dispute resolution provider for the scheme:
b: the scheme provider:
c: a scheme member. Section 246 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
247: Purpose of dispute resolution scheme
The purpose of a dispute resolution scheme is to ensure that, if a consumer has a dispute with a service provider in relation to a Commission code or an industry retail service quality code, the consumer has access to a dispute resolution scheme for resolving that dispute in accordance with the principles set out in section 246(2)(f) Section 247 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
248: Purpose of dispute resolution provider
The purpose of a dispute resolution provider, in relation to a dispute resolution scheme for a Commission code or an industry retail service quality code, is—
a: to operate the scheme; and
b: to administer the relevant code; and
c: to manage consumer complaints relating to the code; and
d: to investigate disputes relating to the code; and
e: to promote awareness of the scheme and the code; and
f: to monitor compliance with the scheme and the code; and
g: to enforce the provisions of the scheme and the code. Section 248 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
249: Interrelationship of remedies
1: Nothing in this Part limits or affects any right, duty, liability, or remedy that exists or is available apart from this Part.
2: Any right of action or other remedy available under, or in connection with, this Part may be taken, proceeded with, or heard in conjunction with any other action or remedy available under this Act or otherwise.
3: However, in determining whether to order a person to pay a penalty, compensation, or damages, the court must have regard to—
a: whether that person has already been ordered to pay a penalty, compensation, or damages for the same matter; and
b: if so, the amount and effect of that first order. 2001 No 103 s 156AS Section 249 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 |
DLM92716 | 2001 | Fisheries (Remedial Issues) Amendment Act 2001 | 1: Title
1: This Act is the Fisheries (Remedial Issues) Amendment Act 2001.
2: In this Act, the Fisheries Act 1996 the principal Act
1: Preliminary provisions
2: Commencement
1: Sections 1 2 3 8 21 25 26 31 34
2: Sections 15 29
3: Sections 4 to 7 9 to 14 16 to 20 22 23 24 27 28 30 32 33
3: Interpretation
1: Section 2(1) tender either separately or
2: Section 2(1) transaction
b: in relation to any quota, a mortgage, variation of mortgage, discharge of mortgage, or assignment of mortgage over the quota:. .
2: Amendments relating to quota management system
4: Effect of reduction of total allowable commercial catch
Section 22(1) unencumbered owned by the Crown
5: Effect of increase in total allowable commercial catch
1: Section 23(3)(a) hold shares for that stock, which shares have been continuously held be registered on the Quota Register as the owner of shares for that stock, and those shares have been continuously owned
2: Section 23 subsection (4)
4: The amount of an eligible person's preferential allocation right must be reduced in accordance with the following formula: a – x c = d b where—
a: is the eligible person's current preferential allocation right for the stock (in kilogrammes)
b: is the total of all preferential allocation rights for the stock (in kilogrammes)
c: is the lesser of—
a: the amount of the increase in the total allowable commercial catch for the stock (in kilogrammes):
b: the total of all preferential allocation rights for the stock (in kilogrammes)
d: is the amount of the reduction in the eligible person's preferential allocation right (in kilogrammes).
4A: An eligible person's preferential allocation right expires if the amount of that right equals zero.
4B: An eligible person is not entitled to receive, in the aggregate under subsection (2) section 337
6: Alteration of quota management areas with agreement of quota owners
1: Section 25A(1) paragraph (e)
e: the quota owners have also notified their intention to seek an alteration to—
i: persons who are noted on the Quota Register as having an interest in the quota to which the proposed alteration relates; and
ii: parties to leases or transfers registered on the Transitional Register in respect of quota to which the proposed alteration relates.
2: Section 25A(2) paragraph (d)
d: the interests of aggrieved—
i: quota owners who hold quota shares to which the proposed alteration relates; and
ii: parties to leases or transfers registered on the Transitional Register in respect of quota to which the proposed alteration relates: .
7: Alteration of quota management areas without agreement of quota owners
Section 25B paragraph (d)
d: has also notified his or her intention to recommend the alteration of the quota management area or areas to—
i: persons who are noted on the Quota Register as having an interest in the quota to which the proposed alteration relates; and
ii: parties to leases or transfers registered on the Transitional Register in respect of quota to which the proposed alteration relates.
8: Effect of decision to alter provisional catch history
1: Section 52(3)(d)(ii) held and continue to hold owned and continue to be registered on the Quota Register as the owner of
2: Section 52(3)(d)(iii) held and continue to hold owned and continue to be registered on the Quota Register as the owner of
3: Section 52(4)(c)(ii) Continuously held and continue to hold continuously owned and continue to be registered on the Quota Register as the owner of
4: Section 52
7: For the purposes of this section, a person registered as the owner of provisional individual transferable quota by virtue of section 162
9: Minimum holdings of annual catch entitlement
Section 74(5) the requirements of subsection (1) of this section the requirements of subsection (1)
10: Fish carriers must be registered
Section 105(1)(a)(i) operator or notified user
3: Amendments relating to fishing vessel registration and high seas fishing
11: Application of this Part to tenders
Section 108 subsection (2)
2: A tender that complies with subsection (1)
12: Use of foreign vessels on high seas by New Zealand nationals
Section 113E subsection (1)
1: No New Zealand national may use a vessel that is not registered under the Ship Registration Act 1992
a: to take (by any method), on the high seas, any fish, aquatic life, or seaweed for sale, except in accordance with an authorisation issued by a state to which subsection (2)
b: to transport any fish, aquatic life, or seaweed taken on the high seas, unless that fish, aquatic life, or seaweed was taken in accordance with an authorisation issued by a state to which subsection (2)
4: Amendments relating to registration of transactions, documentation, and recordkeeping
13: Matters to be shown in Quota Register
Section s127(1)(k) subparagraph (v)
v: every assignment of the mortgage; and
vi: the time and date of discharge of the mortgage: .
14: Transfers of individual transferable quota
Section 132
4: Provisional individual transferable quota is not transferable except by operation of law.
15: New
section 138A The principal Act is amended by inserting, after section 138
138A: Assignment of mortgages
A mortgagee may assign to another person the mortgagee's rights, interests, and obligations under that mortgage by a memorandum of assignment in the approved form.
16: Discharge of mortgage
Section 146(1) shall endorse on the mortgage must execute
17: Priority according to time of registration
Section 158 subsection (2)
2: Regulations under section 297
18: Registration procedure
Section 159 subsection (2)
2: For the purposes of subsection (1)(c)
19: Procedure on application
Section 162
2: After registration under subsection (1)
3: This section overrides sections 132(1)(b), 133(1)(b), 136(2), and 148(1)
20: Compensation for mistake or wrongdoing of Registrar
1: The heading to section 171 of Registrar in keeping Quota Register
2: Section 171(1)(a) section 48 Fisheries Act 1996 Amendment Act 1999 a register under section 98 124 the Quota Register, in the exercise of functions connected with the keeping of the Quota Register
3: Section 171(1A) paragraphs (a) (b)
a: the Crown, if the register was kept by the chief executive at the relevant time; or
b: the approved service delivery organisation, if the functions, duties, and powers connected with the keeping of the register were performed or exercised by that organisation under section 296B .
21: Persons who are required to keep records and returns
Section 189 paragraph (b)
b: owners, caveators, and mortgagees of quota, and owners and caveators of annual catch entitlements: .
22: Disposal of fish by commercial fishers
Section 191(5)(d) section 18(3) Fisheries Act 1996 Amendment (No 2) Act 1999 before being brought into New Zealand
23: Restrictions on purchase or acquisition of fish by certain persons
Section 192(10)(b) before being brought into New Zealand
24: Certificates and official documents
Section 248(1)(a) contained or not contained
25: General regulations
Section 297(1) paragraph (q)
qa: prescribing, for the purposes of section 158(1) .
26: Application of
Commodity Levies Act 1990 Section 305 paragraph (b)
aa: if it is proposed that the levy will be imposed on the basis of 2 or more of the units of measurement in paragraphs (a)(i) to (iii) paragraph (a)(i) to (iii)
i: the Minister is satisfied that it is reasonable to convert to another unit of measurement; and
ii: the Minister is satisfied that the method of conversion is reasonable; and
iii: the method of conversion is stated in the ballot paper:
b: section 5(2)(af), and (ah) to (ak) of that Act
i: the quota shares:
ii: the value of the commodity:
iii: the greenweight or meatweight of the commodity:
iv: 1 or more units of measurement in paragraphs (i) to (iii) converted into another unit of measurement under paragraph (aa).
5: Amendments to savings and transitional provisions
27: Transitional provisions relating to decisions of Catch History Review Committee
Section 337(2)
d: is the sum of the amounts under item a for all persons to be allocated quota under this section.
28: Transitional provisions relating to allocation of annual catch entitlement
1: Section 340 section 73 Fisheries Act 1996 Amendment Act 1999 subsections (1) (2)
1: On the first day of the fishing year in which section 66 section 66
a: with a fishing year beginning on 1 October; and
b: to which section 28V(1) of the Fisheries Act 1983
2: As soon as practicable after the allocation under subsection (1) subsection (1) a — b = c where—
a: is the annual catch entitlement for the stock remaining unallocated in respect of that quota owner (in kilogrammes)
b: is the amount that was taken in excess of quota under the quota owner's quota under an authority given under section 28V(1) section 28V(2) of the Fisheries Act 1983 Fisheries (Catch Against Quota) Regulations 1993
c: is the amount of annual catch entitlement to be allocated to the quota owner and, if c is a negative number, then c must be read as zero kilogrammes.
2: Section 340(4) or, in the case of Foveaux Strait dredge oysters, to the nearest whole number of oysters
3: Section 340 subsection (7)
7: In respect of the allocation of annual catch entitlement in the first fishing year in which section 66
a: section 67
b: section 67A
29: New
section 340AA The principal Act is amended by inserting, after section 340
340AA: Exceptions to minimum holdings of annual catch entitlement for certain paua stocks
1: Despite section 74 section 340(1) section 347A(1)(a)
a: the amount of annual catch entitlement allocated or transferred; or
b: the minimum holding of annual catch entitlement for that stock specified in the Eighth Schedule
2: Subsection (1) section 66
a: the allocation of annual catch entitlement under section 340(2)
b: the transfer of annual catch entitlement under section 347(1)(b)
c: 15 November following the commencement of section 66
3: During the period specified in subsection (2) section 74(2) to 74(5) subsection (1)
30: Transitional provisions relating to underfishing
Section 340A subsection (1)
1A: The chief executive must increase or decrease the allocation under subsection (1)
a: beginning on the first day of the fishing year in which section 66
b: ending on the day before the commencement of section 66
1B: Subsection (1A)
a: with a fishing year beginning on 1 April; and
b: that have underfishing entitlements under section 28V(6) of the Fisheries Act 1983
31: Confirmation of quota
Section 341 subsection (5)
5A: The chief executive must also refuse to receive for registration (whether before or after the date notified under subsection (5) Part VIII
32: Conversion of holdings from old register to new register
1: Section 343 subsection (1)
1: On 1 October in the calendar year in which Part 8 of this Act
a: convert the individual transferable quota or provisional catch history owned by each person into quota shares in accordance with subsections (2) and (2A)
b: determine entitlements to quota shares on the part of the chief executive and the Commission under subsections (2B) and (2C)
c: record in the relevant Quota Register the number of quota shares owned by each person after applying paragraphs (a) and (b)
2: Section 343 subsection (2)
2A: If a stock has a total allowable commercial catch of zero tonnes, provisional catch history must be converted into shares according to the following formula: a — x 80,000,000 = c b where—
a: is the amount of provisional catch history allocated to the person under Part IV
b: is the total amount of provisional catch history held by all eligible commercial fishers
c: is the number of quota shares to which the quota owner is entitled for the stock concerned.
2B: After the conversion in subsection (2A)
2C: If a stock has a total allowable commercial catch of zero tonnes and no provisional catch history has been allocated under Part IV
3: Section 343 (as substituted by section 74 Fisheries Act 1996 Amendment Act 1999 subsection (3)
3: Despite anything in any other enactment or rule of law,—
a: the registration of quota shares under this section does not constitute an allocation of new quota; and
b: quota shares registered under this section have the same characteristics as quota allocated under section 47 Subsection (3) amended 1 October 2001 32 Fisheries Amendment Act 2001 by inserting, after the words principal Act (as substituted by section 74 of the Fisheries Act 1996 Amendment Act 1999)
33: Transitional register
1: Section 345 subsection (4)
4: A lease recorded in the Transitional Register, or any rights, interests, or obligations in respect of that lease, cannot be assigned.
2: Section 345 subsections (5) (6)
5: A reduction of term under subsection (3)
6: A reduction of term under subsection (3)
3: Section 345 subsection (7)
7A: A transfer or lease registered on the Transitional Register is cancelled if—
a: the total allowable commercial catch for the stock concerned is reduced to zero under section 20
b: the quota for the stock concerned is cancelled because of an alteration of a quota management area under section 25
7B: The chief executive must notify the parties to a transfer or lease registered on the Transitional Register if the lease or transfer is cancelled under this Part.
4: Section 345 subsection (8)
8A: The amount of quota or annual catch entitlement to which a lease or other arrangement relates must be reduced in the same proportion as the reduction in the quota holder's quota bears to the total quota shares of the holder immediately before the reduction.
8B: Subsection (8A)
a: a quota holder's quota is reduced under section 52
b: that person has entered into a lease or other arrangement recorded on the Transitional Register in relation to that quota; and
c: by virtue of that lease or other arrangement, another person is, or may become, entitled to acquire an amount of quota shares outright under section 348 section 347
34: Section 346 Section 346
35: Provisions relating to registration of leases
1: Section 347 subsection (3)
3: The chief executive must cancel registration of the lease and any sublease and not transfer any annual catch entitlement if—
a: the lessor does not own an amount of annual catch entitlement equal to, or in excess of, the amount of quota that is subject to the lease or sublease (as recorded in the Transitional Register); or
b: a caveat is registered over an amount of the lessor's annual catch entitlement preventing the transfer of an amount of annual catch entitlement equal to, or in excess of, the amount of quota that is subject to the lease or sublease (as recorded in the Transitional Register).
2: Section 347(4) subsection (2) subsection (1) (2)
3: Section 347 subsections (5) (6)
5: A transfer of annual catch entitlement under this section must be actioned in the order specified in regulations made under section 297(1)(sa)
4: The Fisheries (Remedial Issues) Amendment Act 1998 section 28
36: Provisions relating to allocation of annual catch entitlement under leases in first fishing year
1: The heading to section 347A allocation transfer
2: Section 347A(1) allocated transferred
3: Section 347A subsection (1)
1A: Subsection (1)
a: item a is to be read as if it refers to the further amount of annual catch entitlement that is transferred to the sublessor under subsection (1)(b)
b: item c is to be read as if it refers to the amount of individual transferable quota that is subject to the lease from which the sublease derives directly.
4: Section 347A(2) an allocation a transfer
5: section 347A
3: This section applies only to leases in relation to stocks to which section 340
37: Special provisions relating to stocks with fishing year beginning on 1 April
1: Section 351(1)(a) in accordance with that section of this Act and allocated in the manner provided under section 67
2: Section 351(1)(b) in accordance with that section and allocated under section 67
38: Expiry of
section 354 Section 355(b) the 30th day of September 2002 1 October 2002
39: Transitional offences and penalties
Section 361(1) section 16(6) or section 113A(2)
40: Foveaux Strait dredge oyster fishery subject to quota system
1: Section 368A(6)(a) alter increase
2: Section 368A(6)(b) altered increased
41: Consequential amendment to
Fisheries (Foveaux Strait Dredge Oyster Fishery) Amendment Act 1998 Section 6(3) Fisheries (Foveaux Strait Dredge Oyster Fishery) Amendment Act 1998 paragraph (a) |
DLM85908 | 2001 | Children, Young Persons, and Their Families Amendment Act 2001 | 1: Title
1: This Act is the Children, Young Persons, and Their Families Amendment Act 2001.
2: In this Act, the Children, Young Persons, and Their Families Act 1989 the principal Act
2: Commencement
This Act comes into force on the 90th day after the date on which it receives the Royal assent.
3: Purpose
The purpose of this Act is—
a: to include in the principal Act the principal powers of search and seizure currently prescribed in the Children, Young Persons, and Their Families (Residential Care) Regulations 1996
b: to make it explicit that the regulation-making power in section 447
c: to ensure, for the avoidance of doubt, that including matters relating to search and seizure in the principal Act does not invalidate existing regulations dealing with these matters.
4: New heading and sections 384A to 384K inserted
The principal Act is amended by inserting, after section 384 Searches
384A: Interpretation
For the purposes of sections 384B to 384K harmful item mail
a: a facsimile communication:
b: electronic mail:
c: an envelope or package manager member of staff pat down search
a: run or pat his or her hand over the body of the person being searched, whether inside or outside the clothing (other than any underclothing) of that person:
b: insert his or her hand inside any pocket or pouch in the clothing (other than the underclothing) of the person being searched:
c: for the purpose of permitting a visual inspection, require the person being searched to do all or any of the following:
i: open his or her mouth:
ii: display the palms of his or her hands:
iii: display the soles of his or her feet:
iv: lift or rub his or her hair:
v: remove, raise, lower, or open any outer clothing (including, without limitation, any coat, jacket, jumper, or cardigan) worn by the person being searched, except where the person has no other clothing, or only underclothing, under that outer clothing:
vi: turn out any pocket or pouch, and display any hem, cuff, lining, or fold, in any outer clothing worn by that person:
vii: remove any head covering, gloves, or footwear (including socks or stockings) being worn by that person:
d: conduct a visual examination (whether assisted by any instrument or device designed to illuminate or magnify) of the person's mouth, nose, and ears (not including the insertion of any instrument, device, or thing into such orifice) regulations section 447 residence section 364 scanner search strip search
a: to undress, or to remove any specified items of clothing and underclothing, and be visually examined; and
b: to have his or her clothing searched unauthorised item
a: that is a harmful item; or
b: that may not be lawfully possessed by any child or young person in the residence.
384B: Inspection of mail
The manager may cause to be inspected, in accordance with the regulations, any mail intended to be sent or received by a child or young person in the residence if the manager believes, on reasonable grounds, that the mail contains—
a: any unauthorised item; or
b: any harmful item or any article, drug, or substance that may not lawfully be possessed by the person for whom the mail was intended; or
c: any material that would or might facilitate or encourage the commission of an offence by the person for whom the mail was intended; or
d: any material that would be likely to be offensive or harmful to the person for whom the mail was intended.
384C: Child or young person may be searched to detect unauthorised items
1: A member of staff, who believes on reasonable grounds that a child or young person in the residence has in his or her possession any unauthorised item, may carry out any of the following types of searches for the purpose of detecting that item:
a: a scanner search of the child or young person:
b: a pat down search of the child or young person:
c: a search of any room or sleeping area assigned to the child or young person.
2: Nothing in subsection (1)(c)
3: A member of staff may not carry out a search unless—
a: that member of staff requests that the child or young person hand over the unauthorised item that he or she believes on reasonable grounds to be in the child's or young person's possession; and
b: the child or young person refuses or fails to hand the item over.
4: Nothing in subsection (3)
384D: Use of dogs for searching
1: In exercising a power of search conferred by sections 384B and 384C
2: A dog must not be used unless it is under the control of another person (being a member of the police, or a customs officer, or a member of the Armed Forces, or an employee of the Department of Corrections), who may accompany the member of staff for the purposes of the search.
3: A member of staff who uses a dog for the purposes of searching any child or young person must conduct the search with decency and sensitivity and in a manner that—
a: affords to the child or young person being searched the greatest degree of dignity consistent with the purpose of the search; and
b: prevents the dog coming into physical contact with the child or young person during the search.
384E: Child or young person may be strip searched
1: A member of staff may, if that member of staff believes on reasonable grounds that a child or young person has in his or her possession a harmful item, conduct a strip search of that child or young person for the purposes of detecting the harmful item—
a: if that member believes on reasonable grounds that a strip search is necessary in order to detect the item; and
b: if a scanner search or a pat down search of the child or young person has already been carried out for that purpose.
2: A child or young person required to undress or remove any clothing and underclothing under subsection (1)
384F: Explanation of purpose and consequences of inspections and searches
1: Before any mail is inspected under section 384B section 384C or section 384E
a: that the purpose of the inspection or search is,—
i: in the case of an inspection, to detect any item of the kinds referred to in section 384B
ii: in the case of a search carried out under section 384C
iii: in the case of a search carried out under section 384E
b: that any item seized during the inspection or search will, after consultation with the child or young person, be dealt with in the ways provided for by the regulations; and
c: that any item seized during the inspection or search and subsequently handed to a member of the police in accordance with the regulations may be used as evidence in criminal proceedings against the child or young person.
2: The explanation required by subsection (1)
384G: Restrictions on searches
1: A member of staff must consult with the manager or a senior member of staff before carrying out a search under section 384C or section 384E
2: A pat down search or a strip search of a child or young person must be carried out by a member of staff who is of the same sex as the child or young person being searched.
3: A pat down search or a strip search must not be carried out in view of—
a: a person who is not of the same sex as the child or young person, unless the person is a parent or guardian (other than the chief executive) of the child or young person or a person who would otherwise have the care of the child or young person:
b: another child or young person in the residence.
4: A pat down search or a strip search must not be conducted unless 1 of the following persons is also present:
a: another member of staff:
b: a member of the police:
c: a parent or guardian (other than the chief executive) of the child or young person or a person who would otherwise have the care of the child or young person.
5: A person who conducts a pat down search or a strip search must conduct the search with decency and sensitivity and in a manner that affords the child or young person being searched the greatest degree of privacy and dignity consistent with the purpose of the search.
384H: Use of force in carrying out search
1: A member of staff may not use physical force in carrying out a search authorised by section 384C or section 384E
2: A member of staff who uses force for the purpose referred to in subsection (1)
384I: Recording of inspections and searches
The manager must ensure that a record is made in the daily log kept in accordance with the regulations of—
a: the details of any inspection or search carried out under any of sections 384B, 384C, and 384E
b: in the case of a search carried out under section 384C or section 384E
384J: Child or young person may make complaint
A child or young person who has had his or her mail inspected under section 384B section 384C or section 384E
384K: Power to seize articles, etc, found on inspection or search
1: Any unauthorised item found during any inspection or search may be seized in accordance with the regulations by the member of staff referred to in subsection (2)
2: The member of staff of the residence referred to in subsection (1)
a: in the case of an inspection carried out under section 384B
b: in the case of a search carried out under section 384C
c: in the case of a search carried out under section 384E
3: Any unauthorised item seized must be dealt with in accordance with the regulations.
4: The manager must ensure that a record is made in the daily log kept in accordance with the regulations of the details of the seizure of any unauthorised item and of the action taken in respect of it.
5: Regulations
Section 447 of the principal Act is amended by inserting, after paragraph (c)
ca: regulating searches conducted under sections 384C and 384E section 384B
i: prescribing the manner in which the searches and inspections may be carried out:
ii: prescribing the powers that may be exercised when conducting a search or inspection:
iii: providing for the seizure, disposal, safe keeping, or return of any article, drug, or substance found during a search or inspection:
iv: prescribing conditions on the disposal of any seized article, drug, or substance:
v: prescribing procedures by which a child or young person may lay a complaint in relation to an inspection of mail or a search, and how the complaint is to be dealt with: .
6: Saving
1: The enactment, by section 4 384A to 384K Children, Young Persons, and Their Families (Residential Care) Regulations 1996
2: The enactment, by section 5 (ca) |
DLM113309 | 2001 | New Zealand Council for Educational Research Amendment Act 2001 | 1: Title
1: This Act is the New Zealand Council for Educational Research Amendment Act 2001.
2: In this Act, the New Zealand Council for Educational Research Act 1972 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Disqualification from membership of Council
Section 5(a) Mental Health Act 1969 Mental Health (Compulsory Assessment and Treatment) Act 1992
4: New
section 20A The principal Act is amended by inserting, after section 20
20A: Delegation of powers
1: The Council may delegate to its chief executive officer all or any of its powers except the powers described in any of—
a: paragraphs (c), (d), and (e) of section 14
b: sections 17, 18, 24, and 25
2: Every delegation must be in writing.
3: The chief executive officer may further delegate any power of the Council to a person appointed under section 15
a: the chief executive officer is authorised in writing to delegate the power; and
b: the delegation is in accordance with any conditions contained in the authorisation.
4: A power that has been delegated under subsection (3)
5: Every delegation continues in force until it is revoked by the Council or chief executive officer (as appropriate).
6: The delegation of a power does not prevent the Council from exercising that power, nor does it affect the responsibility of the Council for the actions of any person acting under the delegation.
5: Money to be paid into bank
1: Section 26 subsection (1)
1: The Council may open and maintain bank accounts.
2: Section 26(3) the bank a bank account
6: Council may establish imprest accounts
Section 27(1) to be kept at a branch or agency of the Bank of New Zealand at a bank |
DLM110932 | 2001 | Antarctic Marine Living Resources Amendment Act 2001 | 1: Title
1: This Act is the Antarctic Marine Living Resources Amendment Act 2001.
2: In this Act, the Antarctic Marine Living Resources Act 1981 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Offence to take marine organism without permit
Section 7(1) $10,000 $250,000
4: Offences and penalties
Section 13
a: by omitting from subsection (3)(a) $5,000 $100,000
b: by omitting from subsection (3)(b) $1,000 $100,000 |
DLM90116 | 2001 | Maori Purposes Fund Amendment Act 2001 | 1: Title
1: This Act is the Maori Purposes Fund Amendment Act 2001.
2: In this Act, the Maori Purposes Fund Act 1934-35 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Maori Purposes Fund Board established
Section 7(2) paragraph (c)
c: the members of Parliament for the Maori electoral districts: . |
DLM99419 | 2001 | Tutae-Ka-Wetoweto Forest Act 2001 | 1: Title
This Act is the Tutae-Ka-Wetoweto Forest Act 2001.
2: Commencement
This Act comes into force on 9 October 2001.
3: Purpose
The purpose of this Act is to give effect to certain provisions of the following deeds entered into by the Rakiura Maori Land Trust and the Crown relating to the Tutae-Ka-Wetoweto Forest:
a: the deed dated 9 October 1999; and
b: the deed of covenant dated 9 October 1999.
4: Interpretation of Act generally
Parliament intends the provisions of this Act to be interpreted in a manner that best furthers the agreements expressed in the deed and the deed of covenant.
5: Interpretation
In this Act, unless the context otherwise requires,— deed deed of covenant Schedule 2 Forest Schedule 1 Minister orders Rakiura
6: Act to bind the Crown
This Act binds the Crown.
7: Validity of deed and deed of covenant
1: The deed and the deed of covenant are deemed to be and to have always been valid and effective.
2: This section applies despite any other enactment or rule of law. 1997 No 84 s 15
8: Validity of certain actions of the Crown and Rakiura before commencement of this Act
1: This section applies to anything done by the Crown or Rakiura before the commencement of this Act that would have been lawful had this Act been in force.
2: Anything to which this section applies is deemed to be and to have always been lawful.
3: This section applies despite any other enactment or rule of law. 1997 No 84 s 17
9: Registration of deed of covenant
1: The Registrar of the Maori Land Court must, without fee, on the application of any person authorised in writing by the Minister or Rakiura register the deed of covenant and any amendment to the deed of covenant against the land described in Schedule 1
2: Every covenant contained in the deed of covenant runs with and binds the land that is subject to the covenant and is deemed to be an interest in the land for the purposes of Te Ture Whenua Maori Act 1993 1997 No 84 s 11
10: Exemption from income tax
Any money paid to Rakiura under the deed is exempt income for the purposes of the Income Tax Act 2007 Section 10 amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
11: Rakiura must manage forest in accordance with deed of covenant
Rakiura must manage the Forest—
a: in accordance with clauses 3 and 4 of the deed of covenant; and
b: in accordance with the management plan prepared under clause 6 of the deed of covenant.
12: Forest not to be treated as rateable land for purposes of Local Government (Rating) Act 2002
For the purposes of clause 1 National Parks Act 1980 Section 12 substituted 1 July 2003 section 137(1) Local Government (Rating) Act 2002
13: Enforcement
1: This section applies while the deed of covenant is in force.
2: Sections 93 to 100 101 102(3) to 105
3: Subsection (2) applies subject to the terms and conditions of the deed of covenant.
14: Amendment to Conservation Act 1987
Amendment(s) incorporated in the Act(s) |
DLM121284 | 2001 | Human Rights Amendment Act 2001 | 1: Title
1: This Act is the Human Rights Amendment Act 2001.
2: In this Act, the Human Rights Act 1993 the principal Act
2: Commencement
1: This Act comes into force on 1 January 2002.
2: Despite subsection (1) sections 8(1)(c) 14 15(1)(e) 17 section 5 section 141A(2) section 38
1: Amendments to principal Act
Amendment to preliminary provisions
3: New
section 2 The principal Act is amended by repealing section 2
2: Interpretation
1: In this Act, unless the context otherwise requires,— act Chief Commissioner section 8(1)(a) Commission section 4 Commissioner Director of Human Rights Proceedings Director section 20A dispose sections 53 and 54 dispute resolution meeting section 77(2)(c) dispute resolution services employer Part II
a: the employer of an independent contractor; and
b: the person for whom work is done by contract workers under a contract between that person and the person who supplies those contract workers; and
c: the person for whom work is done by an unpaid worker employment agreement section 5 of the Employment Relations Act 2000 employment contract section 2 of the Employment Contracts Act 1991 Equal Employment Opportunities Commissioner section 8(1)(c) General manager section 18 Human Rights Review Tribunal Tribunal section 93 Minister Office of Human Rights Proceedings Office section 20 prohibited ground of discrimination section 21 Race Relations Commissioner section 8(1)(b) relative
a: is related to the person by blood, marriage, affinity, or adoption; or
b: is wholly or mainly dependent on the person; or
c: is a member of the person's household residential accommodation sections 53 and 54 superannuation scheme trustees
2: Unless the context otherwise requires, every reference in this Act to a complaint alleging a breach of 1 or more Parts of this Act includes a complaint that appears to allege or concern such a breach (whether or not it refers to the relevant Part in question).
3: Unless the context otherwise requires, every reference in this Act to a person against whom a complaint is made includes a body of any kind against whom a complaint is made. 1977 No 49 ss 2, 15(13), 25(5) 1983 No 56 s 4(4) 1992 No 16 s 2(3) 1993 No 35 s 3(3) Amendments to Part 1
4: Continuation of Human Rights Commission
Section 4
4: The capacities, rights, and powers referred to in subsections (2) and (3)
a: by persons authorised by or under this Act to perform functions of the Commission, for the purposes of performing those functions; or
b: by the Director of Human Rights Proceedings, his or her alternate, or the staff of the Office of Human Rights Proceedings (acting in accordance with directions issued by the Director or his or her alternate), for the purposes of exercising or performing a function, power, or duty of the Director under this Act.
5: New
sections 5 to 20H The principal Act is amended by repealing sections 5 to 20 the headings before sections 5 7 10 12 14 Functions and powers of Commission
5: Functions and powers of Commission
1: The primary functions of the Commission are—
a: to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society; and
b: to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society.
2: The Commission has, in order to carry out its primary functions under subsection (1)
a: to be an advocate for human rights and to promote and protect, by education and publicity, respect for, and observance of, human rights:
b: to encourage and co-ordinate programmes and activities in the field of human rights:
c: to make public statements in relation to any matter affecting human rights, including statements promoting an understanding of, and compliance with, this Act or the New Zealand Bill of Rights Act 1990
d: to promote by research, education, and discussion a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law:
e: to prepare and publish, as the Commission considers appropriate, guidelines and voluntary codes of practice for the avoidance of acts or practices that may be inconsistent with, or contrary to, this Act:
f: to receive and invite representations from members of the public on any matter affecting human rights:
g: to consult and co-operate with other persons and bodies concerned with the protection of human rights:
h: to inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or non-governmental, if it appears to the Commission that the matter involves, or may involve, the infringement of human rights:
i: to appear in or bring proceedings, in accordance with section 6 or section 92B or section 92E or section 92H or section 97
j: to apply to a court or tribunal, under rules of court or regulations specifying the tribunal's procedure, to be appointed as intervener or as counsel assisting the court or tribunal, or to take part in proceedings before the court or tribunal in another way permitted by those rules or regulations, if, in the Commission's opinion, taking part in the proceedings in that way will facilitate the performance of its functions stated in paragraph (a) of this subsection
k: to report to the Prime Minister on—
i: any matter affecting human rights, including the desirability of legislative, administrative, or other action to give better protection to human rights and to ensure better compliance with standards laid down in international instruments on human rights:
ii: the desirability of New Zealand becoming bound by any international instrument on human rights:
iii: the implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights:
l: to make public statements in relation to any group of persons in, or who may be coming to, New Zealand who are or may be subject to hostility, or who have been or may be brought into contempt, on the basis that that group consists of persons against whom discrimination is unlawful under this Act:
m: to develop a national plan of action, in consultation with interested parties, for the promotion and protection of human rights in New Zealand:
n: to do anything incidental or conducive to the performance of any of the functions set out in paragraphs (a) to (m)
o: to exercise or perform any other functions, powers, and duties conferred or imposed on it by or under this Act or any other enactment.
3: The Commission may, in the public interest or in the interests of a person, department, or organisation, publish reports relating generally to the exercise of its functions under this Act or to a particular inquiry by it under this Act, whether or not the matters to be dealt with in a report of that kind have been the subject of a report to the Minister or the Prime Minister. 1977 No 49 ss 5(1), (3), (5), 6(1), (2), 28A, 78(1), 86.
6: Powers relating to declaratory judgments
1: If at any time the Commission considers that it may be desirable to obtain a declaratory judgment or order of the High Court in accordance with the Declaratory Judgments Act 1908
2: The Commission may exercise the right in subsection (1) section 5(2)(a)
3: Subsection (1) section 92B or section 92E or section 92H or section 97 1977 No 49 s 5A 1983 No 56 s 3 Activities in performance of Commission's functions
7: Commission determines general nature of activities
1: The members of the Commission acting together determine the strategic direction and the general nature of activities undertaken in the performance of the Commission's functions.
2: The Chief Commissioner is responsible to the Commission for ensuring that activities undertaken in the performance of the Commission's functions are not inconsistent with determinations of the Commission. Membership of Commission
8: Membership of Commission
1: The Commission consists of the following Human Rights Commissioners:
a: a Commissioner appointed as the Chief Commissioner, whose office is a full-time one:
b: a Commissioner appointed as the Race Relations Commissioner, whose office is also a full-time one:
c: a Commissioner appointed as the Equal Employment Opportunities Commissioner, whose office is also a full-time one:
d: No more than 5 other Commissioners, whose offices are each part-time ones.
2: Every Commissioner is appointed by the Governor-General on the recommendation of the Minister.
3: The powers and functions of the Commission are not affected by a vacancy in its membership. 1977 No 49 s 7(1)(a)(c), (ca), (d), (2) s 4(1), (2) 1991 No 132 s 3(1) 1993 No 35 s 2
9: Alternate Commissioners
1: The Governor-General may, on the recommendation of the Minister, appoint as alternate Commissioners persons who may be designated as the alternate of a Commissioner by either the Minister under subsection (2) subsection (3)
2: The Minister may designate a Commissioner or an alternate Commissioner to act as the Chief Commissioner—
a: during the period following the resignation of the Chief Commissioner and ending when the Chief Commissioner's successor comes into office; or
b: during the Chief Commissioner's incapacity or in respect of a particular function or activity of the Commission, as the case may be, if—
i: the Minister is satisfied that the Chief Commissioner is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or
ii: the Chief Commissioner considers it is not proper or desirable that he or she should participate in the function or activity.
3: The Chief Commissioner may designate an alternate Commissioner to act as a Commissioner during the period the Chief Commissioner is acting as Chief Commissioner, or during the period of the Commissioner's incapacity, or in respect of a particular function or activity of the Commission, as the case may be, if—
a: the Chief Commissioner is a Commissioner acting as the Chief Commissioner under a designation under subsection (2)
b: the Chief Commissioner is satisfied that any other Commissioner is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or
c: a Judge who is for the time being holding office as a Commissioner declines to participate in, or withdraws from participation in, the particular function or activity of the Commission under section 20C(2)
d: any other Commissioner considers it is not proper or desirable that he or she should participate in the function or activity of the Commission.
4: An alternate Commissioner designated under subsection (2) or subsection (3)
5: No designation of an alternate Commissioner, and no act done by an alternate Commissioner, and no act done by the Commission while any alternate Commissioner is acting, may in any proceedings be questioned on the ground that the occasion for the alternate Commissioner's designation had not arisen or had ceased. 1977 No 49 s 7B 1985 No 23 s 2
10: Meetings of Commission
1: Meetings of the Commission are held at such times and places as the Commission or the Chief Commissioner may appoint.
2: The Chairperson, the Race Relations Commissioner, or any 4 Commissioners, may, at any time, call a special meeting of the Commission.
3: At a meeting of the Commission, the quorum necessary for the transaction of business is 4 Commissioners.
4: The Chief Commissioner must preside at all meetings of the Commission at which he or she is present, unless the members present, with the consent of the Chief Commissioner, appoint another member to preside at that meeting.
5: In the absence of the Chief Commissioner from a meeting, the Commissioners present must appoint 1 of their number to be the Chairperson for the purposes of that meeting.
6: At a meeting of the Commission, the presiding member has a deliberative vote and, in the case of an equality of votes, also has a casting vote.
7: A question arising at a meeting of the Commission must be decided by a majority of the valid votes recorded on the question.
8: Except as provided by or under this Act, the Commission may regulate its procedure in any manner it thinks fit. 1977 No 49 s 10 Criteria for appointment
11: Criteria for appointment
1: In recommending persons for appointment as Commissioners or alternate Commissioners, the Minister must have regard to the need for Commissioners and alternate Commissioners appointed to have among them—
a: knowledge of, or experience in,—
i: different aspects of matters likely to come before the Commission:
ii: New Zealand law, or the law of another country, or international law, on human rights:
iii: the Treaty of Waitangi and rights of indigenous peoples:
iv: current economic, employment, or social issues:
v: cultural issues and the needs and aspirations (including life experiences) of different communities of interest and population groups in New Zealand society:
b: skills in, or experience in,—
i: advocacy or public education:
ii: business, commerce, economics, industry, or financial or personnel management:
iii: community affairs:
iv: public administration, or the law relating to public administration:
2: Nothing in this section limits section 12 or section 13 1977 No 49 s 7(3) 1985 No 23 s 3(1)
12: Further criteria for appointment of Chief Commissioner
In recommending a person for appointment as Chief Commissioner, the Minister must have regard not only to the criteria stated in section 11
a: ability to provide leadership in relation to the performance of the functions of the Commission (for example, being an advocate for, and promoting, by education and publicity, respect for and observance of human rights):
b: ability to represent the Commission, and to create and maintain effective relationships between it and other persons or bodies:
c: knowledge of New Zealand law, the law of other countries, and international law, on human rights, and of New Zealand's obligations under international instruments on human rights:
d: appreciation of issues or trends in human rights arising in other countries or internationally, and of the relevance of those issues or trends for New Zealand:
e: ability to perform the functions stated in section 15
13: Further criteria for appointment of Race Relations Commissioner
In recommending a person for appointment as Race Relations Commissioner, the Minister must have regard not only to the criteria stated in section 11
a: understanding of current race relations in New Zealand, and of the origins and development of those relations:
b: appreciation of issues or trends in race relations arising in other countries or internationally, and of the relevance of those issues or trends for New Zealand:
c: ability to perform the functions stated in section 16
14: Further criteria for appointment of Equal Employment Opportunities Commissioner
In recommending a person for appointment as the Equal Employment Opportunities Commissioner, the Minister must have regard not only to the criteria stated in section 11
a: understanding of principles relating to equal employment opportunities:
b: appreciation of issues, trends, and developments in the promotion of equal employment opportunities in other countries and internationally, and the relevance of those issues, trends, or developments in New Zealand:
c: ability to perform the functions stated in section 17 Functions of commissioners
15: Functions of Chief Commissioner
1: The Chief Commissioner has the following functions:
a: to chair the Commission, and lead discussions of the Commission (except when the Commission has discussions on matters of race relations):
b: to ensure that activities undertaken in the performance of the Commission's functions are consistent with the strategic direction and other determinations of the Commission under section 7
c: to allocate spheres of responsibility among the Commissioners, and to determine the extent to which Commissioners engage in activities undertaken in the performance of the Commission's functions (except for those stated in section 76
d: to act jointly with the Race Relations Commissioner on matters of race relations arising in the course of activities undertaken in the performance of the Commission's functions and to carry out the functions conferred on the Chief Commissioner by section 16(c) and (d)
e: to act jointly with the Equal Employment Opportunities Commissioner on matters concerning equal employment opportunities arising in the course of activities undertaken in the performance of the Commission's functions, and to carry out the functions conferred on the Chief Commissioner by section 17(g)
f: to supervise and liaise with the General manager on matters of administration in relation to the Commission and on the activities undertaken in the performance of the Commission's functions:
g: any other functions, powers, or duties conferred or imposed on him or her by or under this Act or any other enactment.
2: Subsection (1)(d) and (e) section 7(2) 1977 No 49 s 7(1)(a), (5)
16: Functions of Race Relations Commissioner
The Race Relations Commissioner has the following functions:
a: to lead discussions of the Commission in relation to matters of race relations:
b: to provide advice and leadership on matters of race relations arising in the course of activities undertaken in the performance of the Commission's functions, both when engaging in those activities and otherwise when consulted:
c: to ensure, acting jointly with the Chief Commissioner, that activities undertaken in the performance of the Commission's functions in matters of race relations are consistent with the strategic direction and other determinations of the Commission under section 7
d: to supervise and liaise with the General manager, acting jointly with the Chief Commissioner, on the activities undertaken in the performance of the Commission's functions in matters of race relations:
e: any other functions, powers, or duties conferred or imposed on him or her by or under this Act or any other enactment. 1971 No 150 s 13 1977 No 49 s 86
17: Functions of Equal Employment Opportunities Commissioner
The Equal Employment Opportunities Commissioner has the following functions:
a: to lead discussions of the Commission about equal employment opportunities (including pay equity):
b: to provide advice and leadership on equal employment opportunities arising in the course of activities undertaken in the performance of the Commission's functions, both when engaging in those activities and otherwise when consulted:
c: to evaluate, through the use of benchmarks developed by the Commissioner, the role that legislation, guidelines, and voluntary codes of practice play in facilitating and promoting best practice in equal employment opportunities:
d: to lead development of guidelines and voluntary codes of practice to facilitate and promote best practice in equal employment opportunities (including codes that identify related rights and obligations in legislation), in accordance with section 5(2)(e)
e: to monitor and analyse progress in improving equal employment opportunities in New Zealand, and to report to the Minister on the results of that monitoring and analysis:
f: to liaise with, and complement the work of, any trust or body that has as 1 of its purposes the promotion of equal employment opportunities (including pay equity):
g: to ensure, acting jointly with the Chief Commissioner, that activities undertaken in the performance of the Commission's functions in matters of equal employment opportunities are consistent with the strategic direction and other determinations of the Commission under section 7
h: any other functions, powers, or duties conferred or imposed on him or her by or under this Act or any other enactment. General manager and staff of Commission
18: General manager and staff of Commission
1: The General manager and staff of the Commission undertake activities required to perform the functions of the Commission in accordance with the strategic direction and other determinations of the Commission under section 7
2: The General manager—
a: is responsible to the Chief Commissioner and reports to him or her; and
b: is appointed by the Chief Commissioner, in accordance with clause 1 of Schedule 1
3: Employees of the Commission are responsible to the General manager and report to him or her. Commissioners to act independently
19: Duty to act independently
Members of the Commission must act independently in the exercise or performance of functions of the Commission. Office of Human Rights Proceedings
20: Office of Human Rights Proceedings
1: The Office of Human Rights Proceedings is part of the Commission and is headed by the Director of Human Rights Proceedings or his or her alternate.
2: The staff of the Office report to the Director or his or her alternate, and help him or her to exercise or perform the functions, powers, and duties of the Director under this Act.
3: In exercising or performing the functions, powers, and duties of the Director, the Director or his or her alternate and the staff of the Office must act independently from the Commission and Ministers of the Crown.
4: However, the Director or his or her alternate is responsible to the Chief Commissioner for the efficient, effective, and economical administration of the activities of the Office. Director of Human Rights Proceedings
20A: Director of Human Rights Proceedings
1: The Director of Human Rights Proceedings is appointed by the Governor-General on the recommendation of the Minister.
2: The Governor-General may, on the recommendation of the Minister, appoint as alternate Director of Human Rights Proceedings a person designated for appointment as alternate Director by the Minister.
3: The Minister must not designate a person for appointment as alternate Director of Human Rights Proceedings unless—
a: the Minister is satisfied that the Director is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or
b: the Director considers it is not proper or desirable that the Director should perform any particular duty of his or her office. 1977 No 49 s 7B 1985 No 23 s 2
20B: Criteria and requirement for appointment
1: In recommending a person for appointment as Director of Human Rights Proceedings or as his or her alternate, the Minister must have regard not only to the person's attributes but also to the person's—
a: knowledge of, or experience in,—
i: the different aspects of matters likely to come before the Human Rights Review Tribunal:
ii: New Zealand law, or the law of another country, or international law, on human rights:
iii: current economic, employment, or other social issues:
b: skills in, or experience in, the practice of public law (including the conduct of litigation), and financial and personnel management:
c: ability to exercise or perform, and to ensure the Office of Human Rights Proceedings helps the person to exercise or perform, efficiently and effectively, the functions, powers, and duties of the Director under this Act.
2: Every person appointed as Director of Human Rights Proceedings or as his or her alternate must be a barrister or solicitor of the High Court of not less than 5 years' legal experience. 1977 No 49 s 7(3) 1985 No 23 s 3(1) Appointment of Judge as Human Rights Commissioner
20C: Appointment of Judge as Human Rights Commissioner
1: The appointment of a Judge as a Commissioner or alternate Commissioner or service by a Judge as a Commissioner or alternate Commissioner does not affect his or her tenure of judicial office or his or her rank, title, status, precedence, salary, annual or other allowances, or other rights or privileges as a Judge (including those in relation to superannuation), and, for all purposes, his or her service as a Commissioner or alternate Commissioner must be taken to be service as a Judge.
2: A Judge who is for the time being holding office as a Commissioner may, at any time, decline to participate in, or withdraw from participation in, any particular function or activity of the Commission if the Judge considers it incompatible with his or her judicial office. 1977 No 49 ss 7(5A), 7A 1983 No 56 ss 4(3), 5 1985 No 23 s 3(1) Provisions relating to office holders
20D: Office holders to whom
sections 20E to 20G
1: Sections 20E to 20G office holder office
a: Commissioner:
b: alternate Commissioner:
c: Director of Human Rights Proceedings:
d: alternate Director of Human Rights Proceedings.
2: However, section 20G(c) and (d)
3: Nothing in subsection (2) section 20G(c) or (d) 1983 No 56 s 6 1985 No 23 s 3(1)
20E: Service in office
The office holder must not be treated as being employed in the service of Her Majesty for the purposes of the State Sector Act 1988 Government Superannuation Fund Act 1956 1971 No 150 s 34 1977 No 49 s 7(4) 1985 No 23 s 3(1)
20F: Term of office
The office holder—
a: holds the office for the term (not longer than 5 years) the Governor-General, on the recommendation of the Minister, specifies in the person's appointment; and
b: may, from time to time, be reappointed; and
c: unless he or she sooner vacates or no longer holds or is removed from the office under section 20G 1971 No 150 s 12(1), (2) 1977 No 49 s 8 1985 No 23 s 3(1)
20G: Vacation of office
The office holder—
a: may resign from the office by delivering to the Minister a notice in writing to that effect and stating when the resignation takes effect:
b: ceases to hold office if he or she dies:
c: ceases to hold office if he or she is, under the Insolvency Act 1967
d: may, at any time, be removed from the office by the Governor-General for incapacity affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General. 1971 No 150 s 12(3) 1977 No 49 s 9 1985 No 23 s 3(1) Administrative provisions relating to Human Rights Commission and Office of Human Rights Proceedings
20H: Administrative provisions set out in
Schedules 1 and 2
1: Schedule 1
2: Schedule 2
6: New
Part 1A The principal Act is amended by inserting, immediately before Part 2
1A: Discrimination by Government, related persons and bodies, or persons or bodies acting with legal authority
20I: Purpose of this Part
The purpose of this Part is to provide that, in general, an act or omission that is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990 section 3 of the New Zealand Bill of Rights Act 1990
20J: Acts or omissions in relation to which this Part applies
1: This Part applies only in relation to an act or omission of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990
a: the legislative, executive, or judicial branch of the Government of New Zealand; or
b: a person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
2: Despite subsection (1) sections 22, 23, 61 to 63, and 66
3: If this Part applies in relation to an act or omission, Part II
4: Nothing in this Part affects the New Zealand Bill of Rights Act 1990
20K: Purposes for which
section 20L Section 20L
a: any inquiry undertaken by the Commission under section 5(2)(h)
b: the assessment, consideration, mediation, or determination of a complaint under Part III
c: any determination made by the Director under Part III
d: any determination made in proceedings before the Human Rights Review Tribunal or in any proceedings in any court on an appeal from a decision of that Tribunal:
e: any determination made by any court or tribunal in proceedings brought under this Act by the Commission:
f: any other process or proceedings commenced or conducted under Part III
g: any related matter.
20L: Acts or omissions in breach of this Part
1: An act or omission in relation to which this Part applies (including an enactment) is in breach of this Part if it is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990
2: For the purposes of subsection (1) section 19 of the New Zealand Bill of Rights Act 1990
a: limits the right to freedom from discrimination affirmed by that section; and
b: is not, under section 5 of the New Zealand Bill of Rights Act 1990
3: To avoid doubt, subsections (1) and (2) Amendments to Part 2
7: New headings and
sections 21A 21B The principal Act is amended by inserting, after the heading to Part 2 Application of Part to persons and bodies referred to in section 3 of New Zealand Bill of Rights Act 1990
21A: Application of this Part limited if
section 3 of New Zealand Bill of Rights Act 1990
1: The only provisions of this Part that apply to an act or omission of a person or body described in subsection (2)
a: sections 21 to 35
b: sections 65 and 67 to 74 paragraph (a)
2: The persons and bodies referred to in subsection (1) section 3 of the New Zealand Bill of Rights Act 1990
a: the legislative, executive, and judicial branches of the Government of New Zealand; and
b: every person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. Acts or omissions authorised or required by law
21B: Relationship between this Part and other law
1: To avoid doubt, an act or omission of any person or body is not unlawful under this Part if that act or omission is authorised or required by an enactment or otherwise by law.
2: Nothing in this Part affects the New Zealand Bill of Rights Act 1990 Prohibited grounds of discrimination.
8: Exceptions in relation to access by the public to places, vehicles, and facilities
Section 43 subsection (3)
3: Nothing in subsection (2) section 47A of the Building Act 1991 New Part 3 substituted
9: New
Part 3 The principal Act is amended by repealing Part 3
III: Resolution of disputes about compliance with Part 1A and Part II
75: Object of this Part
The object of this Part is to establish procedures that—
a: facilitate the provision of information to members of the public who have questions about discrimination; and
b: recognise that disputes about compliance with Part 1A or Part II
c: recognise that, if disputes about compliance with Part 1A or Part II
d: recognise that the procedures for dispute resolution under this Part need to be flexible; and
e: recognise that judicial intervention at the lowest level needs to be that of a specialist decision-making body that is not inhibited by strict procedural requirements; and
f: recognise that difficult issues of law may need to be determined by higher courts.
76: Functions of Commission under this Part
1: The primary functions of the Commission under this Part are—
a: to provide information to members of the public who have questions about discrimination; and
b: to facilitate the resolution of disputes about compliance with Part 1A or Part II
2: The Commission has, in order to carry out its function under subsection (1)(b)
a: to receive and assess a complaint alleging that there has been a breach of Part 1A or Part II
b: to gather information in relation to a complaint of that kind (including one referred back to it by the Director under section 90(1)(b) section 92D paragraphs (c) and (d)
c: to offer services designed to facilitate resolution of the complaint, including information, expert problem-solving support, mediation, and other assistance:
d: to take action or further action under this Part in relation to the complaint, if the complainant or aggrieved person wishes to proceed with it, unless section 80(2) or (3)
e: to provide information gathered in relation to a complaint to the parties concerned.
77: Dispute resolution services
1: The Commission must provide dispute resolution services for the purposes of carrying out its functions under section 76
2: Services provided under this section may include—
a: the provision of general information about discrimination and legal obligations in relation to discrimination:
b: the provision of information about what services are available for persons who have disputes about compliance with Part 1A or Part II
c: the provision of a venue for, and a mediator at, any dispute resolution meeting that—
i: is designed to enable each party to discuss and seek to resolve any complaint, without prejudice to his or her position; and
ii: is convened at the request, or with the agreement of, the parties or, if section 84(4)
d: other services (of a type that can address a variety of circumstances) that assist persons to resolve, promptly and effectively, their disputes about compliance with Part 1A or Part II
78: Method of providing services
Services provided under section 77
a: by a telephone, facsimile, internet, or email service (whether as a means of explaining where information can be found or as a means of actually providing the information or of otherwise seeking to resolve the problem); or
b: by publishing pamphlets, brochures, booklets, or codes; or
c: by specialists who—
i: respond to requests or themselves identify how, where, and when their services can best support the object of this Part; or
ii: provide their services in the manner, and at the time and place that is, most likely to resolve the problem or dispute in question; or
iii: provide their services in all of the ways described in this paragraph.
79: How complaints received to be treated
1: This section applies if the Commission receives, under section 76(2)(a) Part 1A or Part II
2: If the complaint or part of it concerns an enactment, or an act or omission that is authorised or required by an enactment, the complaint or relevant part of it must be treated only as a complaint that the enactment is in breach of Part 1A
3: Despite every other provision of this section, if the complaint or part of it concerns a judgment or other order of a court, or an act or omission of a court affecting the conduct of any proceedings, the Commission must take no further action in relation to the complaint or relevant part of it.
4: If the complaint or part of it concerns an act or omission by a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990 subsection (2) subsection (3)
a: must be treated only as a complaint that there is a breach of Part 1A
i: is unlawful under any of sections 22, 23, 61 to 63, and 66
ii: is unlawful under any of sections 65 and 67 to 74 subparagraph (i)
b: must be treated only as a complaint that there has been a breach of the relevant provision or provisions of Part II sections 22, 23, 61 to 63, and 66
5: If the complaint or relevant part of it concerns a breach of Part II subsections (2) to (4) Part II
6: Nothing in this section prevents the Commission from involving any person that it considers appropriate in information gathering and the resolution of disputes.
80: Taking action or further action in relation to complaint
1: The Commission may only take action or further action under this Part in relation to a complaint if the complainant or person alleged to be aggrieved (if not the complainant) informs the Commission that he or she wishes to proceed with the complaint.
2: The Commission may decline to take action or further action under this Part in relation to a complaint if the complaint relates to a matter of which the complainant or the person alleged to be aggrieved (if not the complainant) has had knowledge for more than 12 months before the complaint is received by the Commission.
3: The Commission may also decline to take action or further action under this Part in relation to a complaint if, in the Commission's opinion,—
a: the subject matter of the complaint is trivial; or
b: the complaint is frivolous or vexatious or is not made in good faith; or
c: having regard to all the circumstances of the case, it is unnecessary to take further action in relation to the complaint; or
d: there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition Parliament or to make a complaint to the Ombudsman, that it would be reasonable for the complainant or the person alleged to be aggrieved (if not the complainant) to exercise.
4: If the Commission decides to take no action or no further action in relation to a complaint, it must inform the complainant or the person alleged to be aggrieved (if not the complainant) and the person against whom the complaint is made—
a: of that decision; and
b: of the reasons for that decision; and
c: of his or her right, under section 92B 1977 No 49 s 35 1981 No 127 s 3
81: Commission to inform parties of process
1: Before gathering information about a complaint, the Commission must comply with subsections (2) and (4)
2: The Commission must inform the following persons of the Commission's intention to gather information under section 82 subsection (3)
a: the complainant (if any); and
b: any person alleged to be aggrieved (if not the complainant); and
c: the person against whom the complaint is made; and
d: if the complaint alleges a breach of Part 1A Part II section 3 of the New Zealand Bill of Rights Act 1990
e: any other person or body that the Commission considers relevant.
3: The matters referred to in subsection (2)
a: rights and obligations under this Act; and
b: processes that apply to complaints under this Act; and
c: other services that may help the parties to a complaint secure a settlement of the matter.
4: The Commission must also inform the person against whom the complaint was made and, if subsection (2)(d)
a: of the details of the complaint (if any); and
b: of the right of that person and, if subsection (2)(d)
5: A requirement under this section to inform a person is satisfied if all reasonable efforts have been made to inform the person.
82: Information gathering and disclosure by Commission
1: When the Commission gathers information about a complaint under section 76(2)(b) section 76(2)(c) or (d)
a: that process must be conducted in private:
b: the Commission may hear or obtain information from any persons it thinks fit:
c: except as provided in section 81(4)(b)
2: The Commission must make all reasonable efforts to give all parties concerned all relevant information gathered (if any) by it in relation to a complaint promptly after the information is gathered.
83: Settlement
1: This section applies if at any time it appears to the Commission from a complaint (including one referred back to the Commission by the Director, under section 90(1)(b) section 92D section 81(4)(b)
2: The Commission must use its best endeavours to assist the parties to secure a settlement.
3: In this section, settlement
a: means the agreement of the parties concerned on actions that settle the matter, which may include the payment of compensation or the tendering of an apology; and
b: includes a satisfactory assurance by the person to whom the complaint relates against the repetition of the conduct that was the subject matter of the complaint or against further conduct of a similar kind.
84: Reference of complaint to Director or from Director or Tribunal
1: The complainant, aggrieved person, or party seeking to enforce a settlement may refer a complaint to the Director so that he or she may decide, under section 90(1)(a) or (c)
2: The Commission must promptly inform all parties concerned of every reference of a complaint back to the Commission, whether the reference back is one by the Director, under section 90(1)(b) section 92D
3: A requirement under this section to inform a person is satisfied if all reasonable efforts have been made to inform the person.
4: If a complaint is referred back to the Commission by the Director, under section 90(1)(b) section 92D
85: Confidentiality of information disclosed at dispute resolution meeting
1: Except with the consent of the parties or the relevant party, persons referred to in subsection (2)
a: a statement, admission, or document created or made for the purposes of a dispute resolution meeting; and
b: information that is disclosed orally for the purposes of, and in the course of, a dispute resolution meeting.
2: Subsection (1)
a: is a mediator for a dispute resolution meeting; or
b: attends a dispute resolution meeting; or
c: is a person employed or engaged by the Commission; or
d: is a person who assists either a mediator at a dispute resolution meeting or a person who attends a dispute resolution meeting.
86: Evidence as to dispute resolution meeting
1: No mediator at a dispute resolution meeting may give evidence in any proceedings, whether under this Act or any other Act, about—
a: the meeting; or
b: anything related to the meeting that comes to his or her knowledge for the purposes of, or in the course of, the meeting.
2: No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, under section 85(1)
87: Certain information not to be made available
Any statement, admission, document, or information disclosed or made to the mediator at a dispute resolution meeting for the purposes of the dispute resolution meeting must not be made available under the Official Information Act 1982 Local Government Official Information and Meetings Act 1987 section 85(1)
88: Limits on effect of section 80(1) or sections 85 to 87
Nothing in section 80(1) or sections 85 to 87
a: prevents the discovery or affects the admissibility of any evidence (being evidence that is otherwise discoverable or admissible and that existed independently of the mediation process) just because the evidence was presented for the purposes of, or in the course of, a dispute resolution meeting; or
b: prevents the gathering of information by the Commission for research or educational purposes so long as the parties and the specific matters in issue between them are not identifiable; or
c: prevents the disclosure by any person employed or engaged by the Commission to any other person employed or engaged by the Commission of matters that need to be disclosed for the purposes of giving effect to this Act; or
d: prevents the disclosure of information by any person, if that person has reasonable grounds to believe that disclosure is necessary to prevent, or minimise the danger of, injury to any person or damage to any property.
89: Enforcement of terms of settlement agreed by parties
A settlement between parties to a complaint may be enforced by proceedings before the Tribunal brought under section 92B(4)
a: by the complainant (if any) or the aggrieved person (if not the complainant); or
b: by the person against whom the complaint was made.
90: Functions of Director of Human Rights Proceedings under this Part
1: The Director's functions under this Part include, in relation to a complaint,—
a: deciding, in accordance with sections 91(1) and 92
b: deciding, in accordance with section 91(2)
c: deciding, in accordance with sections 91(3) and 92
2: The Director's functions under this Part include, in relation to a request from the Commission to provide representation in proceedings brought under section 92B, section 92E, or section 97 section 92H sections 91(3) and 92
3: In this section and in sections 92 and 92C related proceedings
a: any appeal to the High Court against a decision of the Tribunal:
b: any proceedings in the High Court arising out of the statement of a case under section 122 section 122A
c: any appeal to the Court of Appeal against a decision of the High Court made in proceedings referred to in paragraphs (a) or (b)
91: Requirements for Director's decisions under section 90
1: The Director may make a decision under section 90(1)(a)
2: The Director may make a decision under section 90(1)(b)
a: it appears to the Director that the complaint may yet be able to be resolved by the parties and the Commission (for example, by mediation); or
b: it is unclear to the Director, from information available to him or her, in relation to the complaint, whether a party has failed to observe the terms of a settlement reached on a previous occasion.
3: The Director may make a decision under section 90(1)(c) or (2)
92: Matters Director to have regard to in deciding whether to provide representation in proceedings before Tribunal or in related proceedings
1: In deciding under section 90(1)(a) or (c) or section 90(2)
a: must have regard to the matters stated in subsection (2)
b: may have regard to any other matter that the Director considers relevant.
2: The matters referred to in subsection (1)(a)
a: whether the complaint raises a significant question of law:
b: whether resolution of the complaint would affect a large number of people (for example, because the proceedings would be brought by or affect a large group of persons):
c: the level of harm involved in the matters that are the subject of the complaint:
d: whether the proceedings in question are likely to be successful:
e: whether the remedies available through proceedings of that kind are likely to suit the particular case:
f: whether there is likely to be any conflict of interest in the provision by the Director of representation to any person described in subsection (1)
g: whether the provision of representation is an effective use of resources:
h: whether or not it would be in the public interest to provide representation.
92A: Director to notify and report on decisions on representation
1: Promptly after making a decision under section 90(1)(a) or (c)
a: of the terms of the decision; and
b: if the Director has decided not to provide representation for the complainant, aggrieved person, class of persons, or party seeking to enforce a settlement, of the reasons for the decision.
2: Promptly after making a decision under section 90(2)
a: of the terms of the decision; and
b: of the reasons for the decision.
3: If the Director decides to provide representation to the Commission in proceedings in which the Commission is entitled to be heard under section 92H
a: cease to provide representation to the Commission; and
b: promptly advise the Commission of the Director's decision.
4: The Director must report to the Minister, at least once each year and without referring to identifiable individuals concerned, on the Director's decisions under section 90(1)(a) and (c) Proceedings
92B: Civil proceedings arising from complaints
1: If a complaint referred to in section 76(2)(a)
a: for a breach of Part 1A Part 1A
b: for a breach of Part 1A section 3(b) of the New Zealand Bill of Rights Act 1990
c: for a breach of Part II
2: If a complaint under section 76(2)(a) Part 1A or Part II subsection (1)
3: A person against whom a complaint referred to in section 76(2)(a) subsection (1)
4: If parties to a complaint under section 76(2)(a)
5: The rights given by subsections (1), (3), and (4)
6: Despite subsection (2) subsection (1)
a: the complainant or person aggrieved (if not the complainant) has not brought proceedings; and
b: the Commission has obtained the agreement of that person before bringing the proceedings; and
c: it considers that bringing the proceedings will facilitate the performance of its functions stated in section 5(2)(a)
7: Despite subsections (1) to (6) section 79(3)
92C: Representation in civil proceedings arising from complaints
1: A party to proceedings before the Tribunal or related proceedings may appear and be heard—
a: in person, or by a barrister or solicitor provided by the person; or
b: by a barrister or solicitor provided by the Director if, and to the extent that, the Director has decided, under section 90(1)(a) or (c) or (2)
2: The Tribunal may, on an application for the purpose by any person, give directions as to the representation, in proceedings before it, of a plaintiff of a kind referred to in section 92N(1) to (3)
3: The Office of Human Rights Proceedings must pay all costs of representation provided—
a: by the Director for a complainant, aggrieved person, group of persons, or party to a settlement of a complaint; and
b: in accordance with a decision of the Director under section 90(1)(a) or (c)
4: The Office of Human Rights Proceedings must pay any award of costs made against a person in proceedings for which representation is provided for that person by the Director.
5: Any award of costs made in favour of a person in proceedings for which representation is provided for that person by the Director must be paid to the Office of Human Rights Proceedings.
6: Nothing in this Act limits or affects the entitlement to legal aid (if any) of a party in respect of proceedings or intended proceedings (whether or not representation for the party in the proceedings may, or is to be, is being, or has been, provided in accordance with a decision of the Director under section 90(1)(a) or (c)
92D: Tribunal may refer complaint back to Commission, or adjourn proceedings to seek resolution by settlement
1: When proceedings under section 92B
a: must (whether through a member or officer) first consider whether an attempt has been made to resolve the complaint (whether through mediation or otherwise); and
b: must refer the complaint under section 76(2)(a)
i: will not contribute constructively to resolving the complaint; or
ii: will not, in the circumstances, be in the public interest; or
iii: will undermine the urgent or interim nature of the proceedings.
2: The Tribunal may, at any time before, during, or after the hearing of proceedings, refer a complaint under section 76(2)(a)
3: The Tribunal may, instead of exercising the power conferred by subsection (2) section 76(2)(a)
92E: Civil proceedings arising from inquiry by Commission
1: If the Commission considers that an inquiry by it under section 5(2)(h) paragraphs (a) to (c)
a: for a breach of Part 1A Part 1A
b: for a breach of Part 1A section 3(b) of the New Zealand Bill of Rights Act 1990
c: for a breach of Part II
2: The Commission may exercise the right in subsection (1) section 5(2)(a)
3: This section does not limit section 6 or section 92H or section 97
92F: Proof of justified limits and exceptions
1: The onus of proving, in any proceedings under this Part, that an act or omission is, under section 5 of the New Zealand Bill of Rights Act 1990 section 19 of the New Zealand Bill of Rights Act 1990
2: The onus of proving, in any proceedings under this Part, that conduct is, under any provision of Part II Part II 1977 No 49 s 39
92G: Right of Attorney-General to appear in civil proceedings
1: The Attorney-General may appear and be heard, in person or by a barrister or solicitor,—
a: in proceedings before the Human Rights Review Tribunal alleging a breach of Part 1A Part II section 3 of the New Zealand Bill of Rights Act 1990
b: in proceedings in any of the following courts in relation to proceedings of a kind referred to in paragraph (a)
i: a District Court:
ii: the High Court:
iii: the Court of Appeal.
2: The right to appear and be heard given by subsection (1)
3: If, under subsection (1) 1977 No 49 s 38A 1983 No 56 s 13 1993 No 35 s 3(5)
92H: Right of Commission to appear in civil proceedings
1: The Commission may appear and be heard, in person or by a barrister or solicitor,—
a: in proceedings before the Human Rights Review Tribunal; and
b: in proceedings in any of the following courts in relation to proceedings that are or have been before the Human Rights Review Tribunal:
i: a District Court:
ii: the High Court:
iii: the Court of Appeal.
2: The right to appear and be heard given by subsection (1)
a: whether or not the Commission is or was a party to the proceedings before the Human Rights Review Tribunal; but
b: only if the Commission considers that the exercise of the right will facilitate the performance of its functions stated in section 5(2)(a)
3: If, under subsection (1)
4: This section is not limited by section 92B or section 92E or section 97 1977 No 49 s 38A 1983 No 56 s 13 1993 No 35 s 3(5) Remedies
92I: Remedies
1: This section is subject to sections 92J and 92K Part 1A
2: In proceedings before the Human Rights Review Tribunal brought under section 92B(1) or (4) or section 92E subsection (3)
3: If, in proceedings referred to in subsection (2) Part 1A or Part II
a: a declaration that the defendant has committed a breach of Part 1A or Part II
b: an order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach, or conduct of any similar kind specified in the order:
c: damages in accordance with sections 92M to 92O
d: an order that the defendant perform any acts specified in the order with a view to redressing any loss or damage suffered by the complainant or, as the case may be, the aggrieved person as a result of the breach:
e: a declaration that any contract entered into or performed in contravention of any provision of Part 1A or Part II
f: an order that the defendant undertake any specified training or any other programme, or implement any specified policy or programme, in order to assist or enable the defendant to comply with the provisions of this Act:
g: relief in accordance with the Illegal Contracts Act 1970
h: any other relief the Tribunal thinks fit.
4: It is no defence to proceedings referred to in subsection (2) or subsection (5) section 92P
5: In proceedings before the Human Rights Review Tribunal brought, under section 92B(3) Part 1A or Part II 1977 No 49 s 38(5), (6), (8) 1983 No 56 s 12(3)
92J: Remedy for enactments in breach of
Part 1A
1: If, in proceedings before the Human Rights Review Tribunal, the Tribunal finds that an enactment is in breach of Part 1A subsection (2)
2: The declaration that may be granted by the Tribunal, if subsection (1) section 19 of the New Zealand Bill of Rights Act 1990
3: The Tribunal may not grant a declaration under subsection (2)
4: Nothing in this section affects the New Zealand Bill of Rights Act 1990
92K: Effect of declaration
1: A declaration under section 92J
a: affect the validity, application, or enforcement of the enactment in respect of which it is given; or
b: prevent the continuation of the act, omission, policy, or activity that was the subject of the complaint.
2: If a declaration is made under section 92J
a: a report bringing the declaration to the attention of the House of Representatives; and
b: a report containing advice on the Government's response to the declaration.
3: The Minister referred to in subsection (2)
92L: Costs
1: In any proceedings under section 92B or section 92E or section 97
2: Without limiting the matters that the Tribunal may consider in determining whether to make an award of costs under this section, the Tribunal may take into account whether, and to what extent, any party to the proceedings—
a: has participated in good faith in the process of information gathering by the Commission:
b: has facilitated or obstructed that information-gathering process:
c: has acted in a manner that facilitated the resolution of the issues that were the subject of the proceedings. 1977 No 49 s 38(7) 1983 No 56 s 12(4)
92M: Damages
1: In any proceedings under section 92B(1) or (4) or section 92E Part 1A or Part II
a: pecuniary loss suffered as a result of, and expenses reasonably incurred by the complainant or, as the case may be, the aggrieved person for the purpose of, the transaction or activity out of which the breach arose:
b: loss of any benefit, whether or not of a monetary kind, that the complainant or, as the case may be, the aggrieved person might reasonably have been expected to obtain but for the breach:
c: humiliation, loss of dignity, and injury to the feelings of the complainant or, as the case may be, the aggrieved person.
2: This section applies subject to sections 92J, 92N, and 92O 1977 No 49 s 40(1)
92N: Directions as to payment of damages in certain cases
1: If the plaintiff is an unmarried minor, the Tribunal may, in its discretion, direct the defendant to pay damages awarded under section 92M
2: If the plaintiff is a mentally disordered person within the meaning of section 2(1) Mental Health (Compulsory Assessment and Treatment) Act 1992 Protection of Personal and Property Rights Act 1988 section 92M
3: If the plaintiff is a person whose property is being managed under the Protection of Personal and Property Rights Act 1988
a: if damages fall within the terms of the property order, the Tribunal must direct the defendant to pay damages awarded under section 92M
b: if damages do not fall within the terms of the property order, the Tribunal may, in its discretion, direct the defendant to pay damages awarded under section 92M
4: If money is paid to the Public Trustee under any of subsections (1) to (3)
a: section 12 of the Minors' Contracts Act 1969
b: subsections (4) and (6) to (9) of section 66 of the Public Trust Office Act 1957 subsection (2) or subsection (3) 1977 No 49 s 40 1983 No 56 s 14(2)
92O: Tribunal may defer or modify remedies for breach of Part 1A or Part II or terms of settlement
1: If, in any proceedings under this Part, the Tribunal determines that an act or omission is in breach of Part 1A or Part II subsection (2)
2: The actions are,—
a: instead of, or as well as, awarding damages or granting any other remedy,—
i: to specify a period during which the defendant must remedy the breach; and
ii: to adjourn the proceedings to a specified date to enable further consideration of the remedies or further remedies (if any) to be granted:
b: to refuse to grant any remedy that has retrospective effect:
c: to refuse to grant any remedy in respect of an act or omission that occurred before the bringing of proceedings or the date of the determination of the Tribunal or any other date specified by the Tribunal:
d: to provide that any remedy granted has effect only prospectively or only from a date specified by the Tribunal:
e: to provide that the retrospective effect of any remedy is limited in a way specified by the Tribunal.
92P: Matters to be taken into account in exercising powers given by section 92O
1: In determining whether to take 1 or more of the actions referred to in section 92O
a: whether or not the defendant in the proceedings has acted in good faith:
b: whether or not the interests of any person or body not represented in the proceedings would be adversely affected if 1 or more of the actions referred to in section 92O
c: whether or not the proceedings involve a significant issue that has not previously been considered by the Tribunal:
d: the social and financial implications of granting any remedy sought by the plaintiff:
e: the significance of the loss or harm suffered by any person as a result of the breach of Part 1A or Part II
f: the public interest generally:
g: any other matter that the Tribunal considers relevant.
2: If the Tribunal finds that an act or omission is in breach of Part 1A section 3 of the New Zealand Bill of Rights Act 1990 Part II section 92O subsection (1)
a: the requirements of fair public administration; and
b: the obligation of the Government to balance competing demands for the expenditure of public money. Monetary limits on remedies Tribunal may grant
92Q: Monetary limits on remedies Tribunal may grant
1: Proceedings under section 92B or section 92E
2: However, except as provided in sections 92R to 92V sections 29 to 34 of the District Courts Act 1947
3: For the purposes of subsection (2) section 92B subsection (2) 1977 No 49 s 41 1983 No 56 s 15 1993 No 5 s 3(6) Granting of remedies by High Court on reference from Tribunal
92R: Tribunal to refer granting of remedies to High Court
The Human Rights Review Tribunal must refer the granting of a remedy in any proceedings under section 92B or section 92E Part 1A or Part II
a: the granting of the appropriate remedy under section 92I section 92Q
b: that the granting of a remedy in those proceedings would be better dealt with by the High Court. 1977 No 49 s 42(1)
92S: Further provisions on reference to High Court
1: A reference under section 92R
a: sets out the Tribunal's finding with regard to the breach of Part 1A or Part II
b: includes, or is accompanied by, a statement of the considerations to which the Tribunal has had regard in making the reference to that Court.
2: A copy of the report must be given or sent promptly to every party to the proceedings.
3: Except as provided in this Act, the procedure for a reference under section 92R 1977 No 49 s 42(4)-(6), (8)
92T: High Court decides remedies on reference from Tribunal
1: This section applies where the granting of a remedy in any proceedings under section 92B or section 92E section 92R
2: The High Court may direct the Tribunal to amplify any report made under section 92S(1)
3: Every person who, under section 92S(2) section 92S(1) Part 1A or Part II
4: However, no person referred to in subsection (3) section 92R subsection (3)
5: The High Court must decide, on the basis of the Tribunal's finding that the defendant has committed a breach of Part 1A or Part II section 92I section 92J 1977 No 49 s 42(2), (5), (6)
92U: High Court's decision on remedies to be included in, and given effect to as part of, Tribunal's determination
1: Every decision of the High Court under section 92T(5)
a: must be remitted to the Tribunal for inclusion in its determination with regard to the proceedings; and
b: has effect as part of that determination despite the limits imposed by section 92Q
2: Nothing in subsection (1)
a: limits sections 123 to 125
b: prevents the making of an appeal in accordance with section 123 subsection (1)(a) 1977 No 49 s 42(3), (9) Abandonment or agreement to bring claim within Tribunal's jurisdiction
92V: Abandonment to enable Tribunal to make award of damages
1: This section applies where the Tribunal would have jurisdiction in any proceedings under section 92B or section 92E section 92M section 29(1) of the District Courts Act 1947 section 92Q(2)
2: The Tribunal may make an award within that limit if the plaintiff abandons the excess.
3: An award of damages in those proceedings in accordance with section 92M
4: This section overrides sections 92Q to 92U 1977 No 49 s 43
92W: Extension of jurisdiction by agreement between parties
1: If, in any proceedings under section 92B or section 92E section 92Q section 92I section 92Q
2: This section overrides sections 92Q to 92U 1977 No 49 s 44(1) Amendments to Part 4
10: New heading to
Part 4 The principal Act is amended by repealing the heading to Part 4 Human Rights Review Tribunal.
11: Complaints Review Tribunal
Section 93
a: omitting from the heading to that section the word Complaints Human Rights
b: inserting, after the word and , immediately before 1 January 2002 (being the date of the commencement of the Human Rights Amendment Act 2001),
c: adding the words , and, on and after 1 January 2002, is called the Human Rights Review Tribunal
12: Functions of Tribunal
Section 94(a) sections 83, 95, and 97 of this Act sections 92B, 92E, 95, and 97
13: Power to make interim order
Section 95 subsection (2)
2: An application for an interim order may be made,—
a: in the case of proceedings under section 92B(1), (2), (3), or (4)
b: in the case of proceedings under section 92E
14: New section 97 substituted
The principal Act is amended by repealing section 97
97: Power in respect of exception for genuine occupational qualification or genuine justification
1: The Tribunal may exercise the power referred to in subsection (2)
a: in respect of a matter in which it has jurisdiction under this Act to make a final determination; and
b: on an application by the Commission, a person or persons against whom a complaint under section 76(2)(a) section 5(2)(h)
2: The power is to declare that an act, omission, practice, requirement, or condition that would otherwise be unlawful under Part II
a: a genuine occupational qualification, in respect of sections 22 to 41
b: a genuine justification, in respect of sections 42 to 60
15: New section 99A inserted
The principal Act is amended by inserting, after section 99
99A: Criteria and requirement for appointment of Chairpersons
1: In recommending a person for appointment as a Chairperson of the Tribunal, the Minister must have regard not only to the matters stated in section 101(2)
a: experience in dispute resolution:
b: experience as a Chairperson and in other leadership roles:
c: ability to perform the functions of a Chairperson of the Tribunal.
2: Every person appointed as a Chairperson of the Tribunal must be a barrister or solicitor of the High Court of not less than 5 years' practice.
16: Appointment and term of office
Section 100(1)
17: Panel
Section 101 subsection (2)
2: In considering the suitability of persons for inclusion on the Panel, the Minister must have regard to the need for persons included on the Panel to have between them knowledge of, or experience in,—
a: different aspects of matters likely to come before the Tribunal:
b: New Zealand law, or the law of another country, or international law, on human rights:
c: public administration, or the law relating to public administration:
d: current economic, employment, or social issues:
e: cultural issues and the needs and aspirations (including life experiences) of different communities of interest and population groups in New Zealand society.
2A: At least 3 members of the panel must be barristers or solicitors of the High Court of not less than 5 years' practice.
18: New section 105 substituted
The principal Act is amended by repealing section 105
105: Substantial merits
1: The Tribunal must act according to the substantial merits of the case, without regard to technicalities.
2: In exercising its powers and functions, the Tribunal must act—
a: in accordance with the principles of natural justice; and
b: in a manner that is fair and reasonable; and
c: according to equity and good conscience.
19: Evidence in proceedings before Tribunal
Section 106 subsection (1)
1: The Tribunal may—
a: call for evidence and information from the parties or any other person:
b: request or require the parties or any other person to attend the proceedings to give evidence:
c: fully examine any witness:
d: receive as evidence any statement, document, information, or matter that may, in its opinion, assist to deal effectively with the matter before it, whether or not it would be admissible in a court of law.
20: Persons entitled to be heard
Section 108 subsection (2)
2: If any person who is not a party to the proceedings before the Tribunal wishes to appear, the person must give notice to the Tribunal and to every party before appearing.
21: New sections 108A and 108B inserted
The principal Act is amended by inserting, after section 108
108A: Tribunal to give notice of proceedings
The Tribunal must notify the Attorney-General promptly of the bringing of proceedings before the Tribunal alleging a breach of Part 1A Part II section 3 of the New Zealand Bill of Rights Act 1990
108B: Submissions in relation to remedies
1: Before the Tribunal grants any remedy under Part III section 92J
a: the implications of granting that remedy; and
b: the appropriateness of that remedy.
2: Subsection (1) Part III or section 108
22: Witness summons
Section 109(1) The Tribunal may , if it considers it necessary,
23: Tribunal may dismiss trivial, etc, proceedings
Section 115 section 83 section 92B or section 92E
24: New section 116 substituted
The principal Act is amended by repealing section 116
116: Reasons to be given
1: This section applies to the following decisions of the Tribunal:
a: a decision to grant 1 or more of the remedies described in section 92I section 92J section 95
b: a decision to make a declaration under section 97
c: a decision to dismiss proceedings brought under section 92B or section 92E or section 95 or section 97
2: Every decision to which this section applies must be in writing and must show the Tribunal's reasons for the decision, including—
a: relevant findings of fact; and
b: explanations and findings on relevant issues of law; and
c: conclusions on matters or issues it considers require determination in order to dispose of the matter.
3: The Tribunal must notify the parties, the Attorney-General, and the Human Rights Commission of every decision of the Tribunal.
25: Enforcement
1: Section 121 subsection (1)
1: The following orders made by the Tribunal may, on registration of a certified copy in the District Court, be enforced in all respects as if they were an order of that Court:
a: an order for the award of costs under section 92L
b: an order for the award of damages under section 92M
c: an interim order under section 95
2: Section 121(2) section 86 of this Act section 92I section 95
26: Stating case for High Court
Section 122 subsection (1)
1A: If, in any proceedings before the Tribunal, the validity of any regulation is questioned, the Tribunal must, unless it considers that there is no arguable case in support of the contention that the regulation is invalid, either—
a: state a case for the opinion of the High Court on the relevant question or questions of law; or
b: if the leave of the High Court is obtained, order, under section 122A(1)
27: New sections 122A and 122B inserted
The principal Act is amended by inserting, after section 122
122A: Removal to High Court of proceedings or issue
1: The Tribunal may, with the leave of the High Court, order that proceedings before it under this Act, or a matter at issue in them, be removed to the High Court for determination.
2: The Tribunal may make an order under this section, with the leave of the High Court, before or during the hearing, and either on the application of a party to the proceedings or on its own initiative, but only if—
a: an important question of law is likely to arise in the proceedings or matter other than incidentally; or
b: the validity of any regulation is questioned in proceedings before the Tribunal (whether on the ground that it authorises or requires unjustifiable discrimination in circumstances where the statutory provision purportedly empowering the making of the regulation does not authorise the making of a regulation authorising or requiring unjustified discrimination, or otherwise); or
c: the nature and the urgency of the proceedings or matter mean that it is in the public interest that they or it be removed immediately to the High Court; or
d: the High Court already has before it other proceedings, or other matters, that are between the same parties and involve issues that are the same as, or similar or related to, those raised by the proceedings or matter; or
e: the Tribunal is of the opinion that, in all the circumstances, the High Court should determine the proceedings or matter.
3: Despite subsection (2)
4: If the Tribunal declines to remove proceedings, or a matter at issue in them, to the High Court (whether as a result of the refusal of the High Court to grant leave or otherwise), the party applying for the removal may seek the special leave of the High Court for an order of the High Court that the proceedings or matter be removed to the High Court and, in determining whether to grant an order of that kind, the High Court must apply the criteria stated in subsection (2)(a) to (d)
5: An order for removal to the High Court under this section may be made subject to any conditions the Tribunal or the High Court, as the case may be, thinks fit.
6: Nothing in this section limits section 122
122B: Proceedings or issue removed to High Court
1: If the Tribunal, acting under section 122A section 122A(2)(b)
2: If the Tribunal, under section 122A subsection (1)
a: the High Court must determine the proceedings or matter and may exercise any power that the Tribunal could have exercised in, or in relation to, the proceedings or matter; and
b: a party to the proceedings may, under section 124
28: Appeals to High Court
Section 123 subsection (2)
2: If a party to proceedings under section 92B or section 92E section 92I section 92J
29: Additional members of High Court for purposes of Act
Section 126(1)
a: by omitting from paragraph (a) section 90 of this Act section 92T
b: by omitting from paragraph (b) sections 123 to 125 of this Act section 123 Amendments to Part V
30: Amendment to heading to
Part 5 The heading to Part 5 Investigations Inquiries
31: New section 126A inserted
The principal Act is amended by inserting, after the heading to Part 5
126A: Evidence order
1: Any District Court Judge who is satisfied, on an application made by the Commission in accordance with subsection (3)
a: requiring that person to produce to the Commission any information, or documents, or things specified in the order; or
b: requiring that person to give evidence to the Commission about matters that, in the opinion of the District Court Judge, are relevant to the inquiry.
2: If an order is made under subsection (1)(a)
3: An application by the Commission for an order under subsection (1)
a: set out the reasons why the order is sought; and
b: if an order is sought under subsection (1)(a)
c: explain why the information, documents, things, or evidence in question will or may be relevant to the inquiry.
4: In this section, specified inquiry section 5(2)(h)
32: Evidence
Section 127 subsections (1) (2)
1: The Commission may, by notice in writing, require any person who is the subject of an order under section 126A(1)(a)
2: The Commission may summon before it, and examine on oath, any person who is subject to an order under section 126A(1)(b)
3: Section 127(3) Commissioner Commission
33: Protection and privileges of witnesses, etc,
Section 128 Commissioner Commission
34: Disclosure of certain matters not to be required
Section 129 Commissioner Commission
35: Proceedings privileged
Section 130
a: by adding to subsection (1) and the Director of Human Rights Proceedings
b: by omitting from subsection (4) or investigation Amendments to Part VII
36: No adverse statement
Section 138 Neither the Commission nor the Complaints Division shall The Commission must not
37: New sections 139 and 140 substituted
The principal Act is amended by repealing sections 139 140
139: Delegation of functions or powers by Commission
1: After consulting with the Minister, the Commission may, by writing signed by the Chief Commissioner, delegate to a Commissioner any function or power of the Commission under this Act, except those stated in sections 7 and 76
2: Delegations under this section are revocable at will and, until revoked, continue in force according to their tenor.
3: The delegation of a function or power under this section does not prevent the Commission from performing or exercising the function or power.
4: If a function or power is delegated under this section, the performance or exercise of the function or power must not be inconsistent with determinations of the Commission under section 7 1977 No 49 s 79
140: Delegation of powers by certain Commissioners
1: The Chief Human Rights Commissioner or the Race Relations Commissioner may, in writing signed by him or her, delegate to an officer or employee of the Commission any of the Commissioner's functions or powers under this Act, except this power of delegation and the power to make a report under this Act.
2: A delegation under this section—
a: may be made to a specified person or to the holder for the time being of a specified office or to the holders of offices of a specified class; and
b: may be made subject to any restrictions or conditions the Commissioner thinks fit; and
c: may be made either generally or in relation to any particular case or class of cases; and
d: is revocable at will and, until revoked, continues in force according to its tenor.
3: If a function or power is delegated under this section, the performance or exercise of the function or power must not be inconsistent with determinations of the Commission under section 7
4: If a function or power is delegated under this section and the Commissioner by whom it was made ceases to hold office, the delegation continues to have effect as if it were made by his or her successor.
5: A person purporting to exercise a function or power of a Commissioner by virtue of a delegation under this section must, when required to do so, produce evidence of the person's authority to exercise the power. 1977 No 49 s 80
38: New section 141A inserted
The principal Act is amended by inserting, after section 141
141A: Certain acts not to be questioned
1: No action of the Chief Commissioner or the Race Relations Commissioner that is required by this Act to be undertaken jointly with the other may be questioned in any proceedings on the ground that it was not undertaken jointly.
2: No action of the Chief Commissioner or the Equal Employment Opportunities Commissioner that is required by this Act to be undertaken jointly with the other may be questioned in any proceedings on the ground that it was not undertaken jointly.
39: Regulations
Section 144(a) or the Complaints Division
40: New headings and sections 148 to 148O substituted
The principal Act is amended by repealing sections 145 to 148 the heading above section 148 Transitional provisions
148: Former office of Commissioner abolished
1: The office of Commissioner under section 7(1) of the principal Act
2: No person is entitled to compensation for loss of office as a Commissioner under subsection (1)
148A: Certain former Commissioners to be transitional members of Commission
1: The person who, immediately before the commencement of this section, held office as Chief Commissioner under section 7(1)(a) section 8(1)(a) section 5 of the Human Rights Amendment Act 2001
2: The person who, immediately before the commencement of this section, held office as the Race Relations Conciliator is taken to have been appointed to the office of Race Relations Commissioner under section 8(1)(b) section 5 of the Human Rights Amendment Act 2001
3: Every person who, immediately before the commencement of this section, held office as Commissioner under section 7(1)(e) section 8(1)(d) section 5 of the Human Rights Amendment Act 2001
4: The Privacy Commissioner appointed under the Privacy Act 1993 section 7(1)(d)
5: Every person who is taken to have been appointed to the office of Commissioner under this section is appointed on the same terms and conditions and for the remainder of the term for which the person was appointed under section 7(1) Race Relations Conciliator
148B: Assets and liabilities vest in Commission
On the commencement of this section, the assets and liabilities of the Race Relations Conciliator vest in the Commission.
148C: References to Race Relations Conciliator
1: From the commencement of this section, unless the context otherwise requires, every reference to the Race Relations Conciliator in any instrument, document, or notice is to be read as a reference to the Race Relations Commissioner.
2: Despite subsection (1)
148D: Proceedings
Any proceedings to which the Race Relations Conciliator was a party or that he or she was considering bringing, before the commencement of this section, may be brought, continued, completed, and enforced by or against the Commission.
148E: Commission to arrange final audited accounts
The Commission must perform the duties that the Race Relations Conciliator would have had to perform under section 41 of the Public Finance Act 1989
148F: All employees transferred to Commission
1: Every person employed by the Race Relations Conciliator immediately before the commencement of this section is, on and from that date, an employee of the Commission on the same terms and conditions that applied to the employee immediately before that date.
2: For the purposes of every enactment, law, contract, and agreement relating to the employment of the employee,—
a: the contract of employment of that employee is taken to be unbroken; and
b: the employee's period of service with the Race Relations Conciliator and every other period of service of that employee that is recognised by the Race Relations Conciliator as continuous service is taken to have been a period of service with the Commission.
3: A person to whom subsection (1) Proceedings Commissioner
148G: Proceedings Commissioner
1: The person who, immediately before the commencement of this section, held office as the Proceedings Commissioner under section 7(1)(d) section 20A section 5 of the Human Rights Amendment Act 2001
2: The Director of Human Rights Proceedings is appointed on the same terms and conditions and for the remainder of the term for which he or she was appointed Proceedings Commissioner.
148H: References to Proceedings Commissioner
From the commencement of this section, unless the context otherwise requires, every reference to the Proceedings Commissioner in any instrument, document, or notice is to be read as a reference to the Director.
148I: Proceedings to which Proceedings Commissioner party
1: Proceedings to which the Proceedings Commissioner was a party or that he or she was considering bringing, before the commencement of this section—
a: must be brought, continued, completed, and enforced by the Director; and
b: may be brought, continued, completed, and enforced against the Director.
2: Sections 86 to 92, 95, and 97
a: the Director were the Proceedings Commissioner; and
b: the Office of Human Rights Proceedings were the Commission; and
c: the Human Rights Review Tribunal were the Complaints Review Tribunal.
148J: Complaints referred to Proceedings Commissioner for decision as to proceedings
1: Subsection (2)
a: if a complaint is referred to the Proceedings Commissioner under section 75(g)
b: if the Proceedings Commissioner was required to decide whether to institute proceedings against a party to a settlement under section 82(1)(c)
2: If this subsection applies,—
a: if the Commissioner has not made a decision on whether to institute proceedings, the Director must decide, under section 90(1)(c)
b: if the Commissioner has made a decision to institute proceedings, the Director must provide representation for the complainant or aggrieved party (as the case may be) in the proceedings:
c: if the Commissioner has made a decision not to institute proceedings, that decision is deemed to have been made by the Director.
148K: Transfer of employees from Commission to Office
1: The Commission and the Office of Human Rights Proceedings may, after consulting the employee concerned, agree to the transfer of an employee from the Commission to the Office of Human Rights Proceedings on the same terms and conditions that applied to the employee immediately before the date of transfer.
2: For the purposes of every enactment, law, contract, and agreement relating to the employment of the employee,—
a: the contract of employment of that employee is taken to have been unbroken; and
b: the employee's period of service with the Commission, and every other period of service of that employee that is recognised by the Commission as continuous service, is taken to have been a period of service with the Office of Human Rights Proceedings.
3: An employee of the Commission who is transferred to the Office of Human Rights Proceedings under subsection (1)
a: the position held by the employee with the Commission has ceased to exist; or
b: the person has ceased (as a result of the transfer) to be an employee of the Commission. Complaints Division
148L: Complaints Division abolished
The Complaints Division of the Commission is abolished.
148M: Outstanding complaints to be dealt with by Commission under new procedure
1: A complaint lodged with the Complaints Division before the commencement of this Act must be dealt with by the Commission under Part III section 9 of the Human Rights Amendment Act 2001 section 76(2)(a)
2: For the purposes of subsection (1)
a: if the Complaints Division has called a conciliation conference under section 80(1)
b: if section 79(2)
3: Despite subsection (1) section 76(1) or section 77(1)(a)
148N: Breaches of
Part 1A No act or omission that occurred before 1 January 2002 is capable of being in breach of Part 1A
a: the act or omission continues on or after 1 January 2002; or
b: in the case of an enactment, the enactment is in force on or after 1 January 2002.
148O: Complaints about breaches of
Part 1A
1: Despite section 76 Part 1A
2: The Commission is not under a duty to receive or assess any complaint alleging that an act or omission that occurred before 1 January 2002 and that ceased to continue or to be in force before 1 January 2002 is in breach of Part 1A
41: Other enactments and actions not affected
Sections 151 152
42: Savings
1: Section 153(1)
a: omitting the words shall affect affects
b: omitting the words which might have been brought if this Act had not been passed that may be brought other than under this Act
c: omitting the word shall must
2: Section 153 subsections (3)(a) (4)
43: New Schedules 1 and 2 substituted
The principal Act is amended by repealing Schedules 1 2 3 Schedule 1 2 Schedule 1
44: Repeals
The Human Rights Amendment Act (No 2) 1994 (1994 No 151)
2: Amendments to other enactments
Amendment to Alcoholism and Drug Addiction Act 1966
45: Power of District Court Judge to order detention and treatment on application of relative or other reputable person
Section 9(8) Alcoholism and Drug Addiction Act 1966 spouse, de facto partner of the same or different sex, Amendment to Births, Deaths, and Marriages Registration Act 1995
46: Marriage information to be sent to Registrar
Section 55 Births, Deaths, and Marriages Registration Act 1995 subsection (2)
2: If a marriage has been solemnised in accordance with the marriage regulations of the religious Society of Friends (commonly called Quakers) or, as the case may require, in accordance with the rules and procedures of an exempt religious body,—
a: the husband and wife must, immediately after the solemnisation,—
i: enter on both forms provided under section 24 of the Marriage Act 1955
ii: ensure that both forms are signed by the husband, the wife, and 2 witnesses to the solemnisation; and
iii: ensure that 1 form is given, sent, or posted to the registering officer of the Society of Friends or, as the case may require, the registering officer of the exempt religious body; and
b: as soon as is practicable after receiving a form under paragraph (a)(iii) or subsection (4)
2A: In subsection (2) exempt religious body section 32A(5) of the Marriage Act 1955 Amendment to Crimes Act 1961
47: Discharge of jury
Section 47 repealed 25 December 2008 section 16(3)(c) Juries Amendment Act 2008 Amendments to Electoral Act 1993
48: Rules for determining place of residence within New Zealand
1: Section 72(6) Electoral Act 1993 paragraphs (b) (c) (d) spouse or de facto partner of the same or different sex
2: Section 72(10) Electoral Act 1993 spouse or de facto partner of the same or different sex
49: Disqualifications for registration
Section 80(3)(b) Electoral Act 1993 subparagraph (ii)
ii: is the spouse, de facto partner (whether of the same or different sex), or the child of the person referred to in subparagraph (i)
50: Removal of names from roll by Registrar
Section 98(1)(b) Electoral Act 1993 subparagraph (ii) spouse or de facto partner of the same or different sex
51: Dormant file
Section 109(2)(b) Electoral Act 1993 subparagraph (ii) or spouse spouse, or de facto partner of the same or different sex Amendments to Holidays Act 1981 This heading was repealed 1 April 2004 91(1) Holidays Act 2003
52: Entitlement to special leave
Section 52 repealed 1 April 2004 91(1) Holidays Act 2003 Amendments to Human Tissue Act 1964 Heading repealed 1 November 2008 section 92 Human Tissue Act 2008
53: Removal of human tissue for therapeutic purposes, etc
Section 53 repealed 1 November 2008 section 92 Human Tissue Act 2008
54: Anatomical examinations
Section 54 repealed 1 November 2008 section 92 Human Tissue Act 2008 Amendment to Immigration Act 1987
55: New
sections 149C 149D The Immigration Act 1987 section 149B
149C: Purpose of
section 149D Section 149D
149D: Relationship between this Act and Human Rights Act 1993
1: Despite anything in the Human Rights Act 1993
a: the content or application of this Act or any regulations made under this Act; or
b: the content or application of any policy made in accordance with section 13A and section 13B
2: The Human Rights Commission may, subject to subsection (3) section 5 of the Human Rights Act 1993
3: The Commission may not, in relation to any matter referred to in subsection (1)
a: bring any proceedings of a kind referred to in section 5(2)(i) of the Human Rights Act 1993
b: exercise the powers conferred by section 5(2)(j) of that Act Amendment to Judicature Act 1908
56: Discharge of jury
Section 56 repealed 25 December 2008 section 16(3)(c) Juries Amendment Act 2008 Amendment to Land Transfer Act 1952
57: Particulars of marriage of female proprietor to be registered
Section 127 Land Transfer Act 1952 Amendment to Life Insurance Act 1908
58: Wife may insure her own or her husband's life for her own benefit
Section 75A(2) Life Insurance Act 1908 man on his own life, and expressed to be for the benefit of his wife or of his children, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the benefit of her husband or of her children, or of her husband and children, or any of them person on his or her own life, and expressed to be for the benefit of his or her spouse, de facto partner (whether of the same or different sex), or his or her children, or his or her spouse or de facto partner (whether of the same or different sex) and his or her children, or any of them Amendments to Marriage Act 1955
59: Place and form of marriage before marriage celebrant
Section 31 Marriage Act 1955 subsection (3)
3: During the solemnisation of every such marriage each party must say to the other—
a: I AB, take you CD, to be my legal wife or husband
b: words to similar effect; or
c: in the case of the solemnisation of a marriage in accordance with the rules and procedures of a specified body that require different words to be used as a marriage vow than those set out in paragraph (a)
4: The solemnisation of a marriage may not be conducted in accordance with subsection (3)(c)
a: informs the Registrar of the words that are intended to be used in place of the words set out in subsection (3)(a)
b: notifies the Registrar of the safeguards to be adopted by that body to ensure that—
i: there is a clear identification of the parties to the marriage; and
ii: that the parties freely consent to the marriage; and
iii: the witnesses understand the ceremony and can verify the matters referred to in subparagraphs (i) and (ii)
5: In this section, specified body
a: a religious body described in the First Schedule section 32C
b: an organisation approved under section 9
60: New
section 14A The Marriage Act 1955 section 14
14A: This Part not to limit
sections 32 and 32A Nothing in this Part limits sections 32 and 32A Part V
61: New
sections 32A to 32E The Marriage Act 1955 section 32
32A: Marriage in accordance with rules and procedures of exempt religious bodies
1: The provisions of this Part relating to the solemnisation of marriage in the presence of a marriage celebrant do not extend to marriages conducted in accordance with the rules and procedures of an exempt religious body.
2: Despite subsection (1)
a: must not be solemnised unless a marriage licence has been issued:
b: must be solemnised at a place stated in the marriage licence.
3: Every marriage to which subsection (1)
4: This section does not limit the provisions of section 22
5: In this section and in sections 32B to 32E exempt religious body section 32C
32B: Application to become exempt religious body
1: A religious body (other than the religious body to which section 32
2: An application made under subsection (1)
a: a statement signed by the chief office bearer and 10 members of the religious body setting out—
i: the beliefs and objects of the organisation; and
ii: the number or, if this cannot be accurately ascertained, the approximate number of members of the organisation of or over 18 years; and
b: a statement explaining why the objects and beliefs of the religious body are inconsistent with those provisions of this Part relating to the solemnisation of marriages in the presence of a marriage celebrant; and
c: a statement containing a description of the rules and procedures by which the body proposes to solemnise marriages.
3: In the case of a religious body whose rules and procedures or tenets do not recognise any chief office bearer, the statement referred to in subsection (2)(a)
4: The statement referred to in subsection 2(a) subsection (3)
a: each signatory is of or over 18 years and includes in the statement his or her age and address; and
b: the signatures of the signatories are attested by another person who must, by statutory declaration attached to the statement, verify the signatures as the genuine signatures of the persons whose signatures they purport to be.
32C: Declaration of religious body as exempt religious body
1: The Registrar-General may, on receiving an application under section 32B
a: that the body is a bona fide religious body; and
b: that the beliefs of that body are genuinely and sincerely held by its members; and
c: that the beliefs or objects of that body are inconsistent with the fulfilment of the requirements of this Part relating to the solemnisation of marriage in the presence of a marriage celebrant; and
d: that the rules and procedures under which that body proposes to solemnise marriage are—
i: consistent with the requirements of this Act (other than those referred to in paragraph (c)
ii: otherwise satisfactory.
2: If, on receiving an application under section 32B
3: If the Minister considers that the requirements of subsection (1)(a) to (d)
4: A declaration under this section that a religious body is an exempt religious body must be made by way of notice in the Gazette
32D: Change in beliefs or objects of exempt religious bodies
1: If an exempt religious body changes its name or any of its beliefs or objects, it must immediately give the Registrar-General notice in writing, signed in the manner required by section 32B(2)(a)
a: of its former and new names; and
b: of whether its beliefs and objects remain unchanged since it last stated them to the Registrar-General under section 32B
c: if those beliefs and objects do not remain unchanged, stating its present beliefs and objects; and
d: stating whether its present beliefs and objects continue to be inconsistent with the provisions of this Part relating to the solemnisation of marriages in the presence of a marriage celebrant.
2: If the Registrar-General is satisfied that an exempt religious body has changed its name, the Registrar must notify the change by notice in the Gazette
3: Subsection (4)
a: has been notified under subsection (1)
b: is satisfied that any of the beliefs or objects of an exempt religious body have changed since that organisation last stated its beliefs and objects to the Registrar-General under section 32B
4: If subsection (3)
a: that that exempt religious body should continue to be an exempt religious body; or
b: that the Minister must cancel the exemption of that body from observing the requirements of this Part relating to the solemnisation of marriages in the presence of a marriage celebrant.
5: The Registrar-General must not recommend, under subsection (4)
6: The Minister may exercise the power conferred by subsection (7)
a: becomes satisfied that, in the light of information not available to the Minister or Registrar-General (as the case may be) when an exempt religious body was granted an exemption, or as a consequence of a change in the circumstances of an exempt religious body, that the body should not continue to be an exempt religious body; or
b: is not satisfied (whether or not as a result of a recommendation under subsection (4)
7: If subsection (6) Gazette subsection (6)
32E: List of exempt religious bodies
1: The Registrar-General must, in each year,—
a: prepare a list of exempt religious bodies (in this section referred to as the list
b: ensure that the list is published in the Gazette
2: The list must contain the name of every exempt religious body and must be corrected or added to as often as is necessary to maintain its accuracy.
3: The Registrar-General must ensure that each correction of, or addition to, the list is published in the Gazette
4: The Registrar-General must specify in each list published in the Gazette Amendments to Police Act 1958
62: Interpretation
1: Section 2 Police Act 1958 Minister member of the Government Superannuation Fund Police Sub-Scheme Part VIA of the Government Superannuation Fund Act 1956 .
2: Sections 28B 67(7) Police Act 1958 (as defined in section 27(9) of this Act
63: Age of retirement
1: Section 27 Police Act 1958
2: Section 88B Government Superannuation Fund Act 1956 subsections (2)(a) (4)(a)
a: a member of the police who was or is appointed by reason of special qualifications to perform duties of a specialised nature and who, throughout the member's entire police career, holds a specially designated rank: .
3: The following enactments are consequentially repealed:
a: section 8 Human Rights Amendment Act 1999
b: section 2 of the Police Amendment Act 1985
c: section 12(1)
d: section 4 of the Police Amendment Act 1992
64: New
section 53 The Police Act 1958 section 53
53: Failing to help member of police
1: A member of the police in the lawful execution of his or her duty may ask any person who is 18 years old or older to help the member of the police do either or both of the following:
a: apprehend or secure any person:
b: convey any person in the charge of the member of the police to a police station or other place.
2: The member of the police may ask the person for help of that kind only if it is, in the circumstances, a reasonable necessity.
3: Every person who, when so asked, fails to give help of that kind to any member of the police commits an offence and is liable on summary conviction to a fine not exceeding $500.
4: However, a failure of that kind before the commencement of the Human Rights Amendment Act 2001, and by a person who is not a male, is not an offence under subsection (3) Amendment to Protection of Personal and Property Rights Act 1988
65: Interpretation
Section 2 Protection of Personal and Property Rights Act 1988 paragraph (a) relative or any other person with whom that person has a relationship in the nature of marriage or the de facto partner of the same or different sex of that person Amendment to Referenda (Postal Voting) Act 2000
66: Persons who, at commencement of voting period, are dead or disqualified or removed from roll
Section 26(2)(b)(ii) Referenda (Postal Voting) Act 2000 or spouse spouse, or de facto partner (whether of the same or different sex) Amendments to Sale of Liquor Act 1989
67: Being on licensed premises outside licensing hours
Section 170(2)(a) Sale of Liquor Act 1989 spouse or de facto partner (whether of the same or different sex)
68: Disqualification of members of Trust
Section 200(1) Sale of Liquor Act 1989 paragraphs (c) (d) husband or wife or de facto partner (whether of the same or different sex) Amendment to Summary Proceedings Act 1957
69: Mode of service of documents on defendant
Section 24(2) Summary Proceedings Act 1957 husband, de facto partner of the same or different sex, Amendments relating to disability as a ground for removal from office
70: Amendments to ensure disability not a ground for removal
1: The Acts specified in Part 1
2: The regulations specified in Part 2 Consequential amendments
71: Consequential amendments
1: The Acts specified in Part 1
2: The regulations specified in Part 2 |
DLM116891 | 2001 | Civil Aviation (Medical Certification) Amendment Act 2001 | 1: Title
1: This Act is the Civil Aviation (Medical Certification) Amendment Act 2001.
2: In this Act, the Civil Aviation Act 1990 the principal Act
1: Preliminary provisions
2: Commencement
This Act comes into force on 1 April 2002.
3: Purpose
The purpose of this Act is to amend the principal Act by incorporating provisions that enhance the safety of civil aviation by improving the regulation of medical certification.
2: Amendments to principal Act
4: Interpretation
Section 2 aviation examiner section 27F(2) or section 27Q(2)(c) Part 2A convener section 27J deputy convener section 27J medical examiner section 27F(1) or section 27Q(2)(b) section 27D registered medical practitioner
a: a person in New Zealand who is registered as a medical practitioner under the Medical Practitioners Act 1995
b: a person in a jurisdiction other than New Zealand who is entitled, licensed, or registered to practise medicine in that jurisdiction specified examination
a: an examination of visual and colour perception; or
b: an examination of hearing; or
c: a psychological examination; or
d: any other class of examination prescribed in the rules
5: New
Part 2A The principal Act is amended by inserting, after Part 2
2A: Medical certification
27A: Interpretation
1: In this Part, unless the context otherwise requires,— accredited medical conclusion applicant licence holder
a: holds an aviation document or is a pilot; and
b: holds, or is required under the rules to hold, a medical certificate medical certificate operator
2: A medical certificate is not an aviation document.
3: In this Part, the phrase privileges to which a medical certificate relates
a: holds a current aviation document; or
b: is permitted under the rules to operate an aircraft solo as a pilot.
27B: Power of Director to issue medical certificate
1: After considering an application for a medical certificate, the Director must, as soon as practicable but no later than 30 working days after the date of receiving the report of the medical examiner, issue the medical certificate if he or she is satisfied that the applicant meets the medical standards prescribed in the rules, unless the Director has reasonable grounds to believe that the applicant has any characteristic that may interfere with the safe exercise of the privileges to which the medical certificate relates.
2: Despite subsection (1)
3: In subsection (2) flexibility
a: an accredited medical conclusion indicates that in special circumstances the applicant's failure to meet any medical standard prescribed in the rules is such that the exercise of the privileges to which a medical certificate relates is not likely to jeopardise aviation safety; and
b: the relevant ability, skill, and experiences of the applicant and operational conditions have been given due consideration; and
c: the medical certificate is endorsed with any conditions, restrictions, or endorsements when the safe performance of the applicant's duties is dependent on compliance with those conditions, restrictions, or endorsements.
4: The Director may impose any conditions, restrictions, or endorsements on a medical certificate issued under this section.
5: Before issuing a medical certificate, the Director—
a: must have regard to the report of the medical examiner and any other information that may be relevant; and
b: may require the applicant, at the applicant's expense, to undertake any other tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, as the Director reasonably considers necessary to assess the applicant.
6: If the Director requires an applicant to undertake any other test, examination, or re-examination, or to provide any medical information, the period in which the Director must make a decision in relation to the medical certificate under this section does not include the number of days that are required to conduct and deliver the results of the test, examination, or re-examination, or to provide the medical information, to the Director.
7: The Director must maintain a register of current medical certificates issued under this section.
8: Any decision made under this section by the Director in relation to a medical certificate other than a decision under subsection (5)(b) section 27L
27C: Changes in medical condition of licence holder
1: Subject to any directions that the Director may issue under section 27G(1)(b)
a: must advise the Director of the change as soon as practicable; and
b: may not exercise the privileges to which the licence holder's medical certificate relates.
2: Subject to any directions that the Director may issue under section 27G(1)(b)
3: Subject to any directions that the Director may issue under section 27G(1)(b)
a: inform the licence holder that the Director will be advised of the condition; and
b: advise the Director of the condition.
4: An aviation examiner or medical examiner or a registered medical practitioner is not subject to any civil or criminal liability for—
a: doing an indemnified act in good faith in the course of carrying out his or her functions under this Part; or
b: doing an indemnified act in good faith in the course of answering any questions put to him or her by the Director that—
i: concern a licence holder; and
ii: are relevant to any action the Director may take under this Part.
5: In this section, indemnified act
a: advising the Director, whether in writing or otherwise, that a licence holder—
i: may not meet the medical standards prescribed in the rules; or
ii: may be unable to exercise safely the privileges to which the licence holder's medical certificate relates:
b: expressing to the Director, whether in writing or otherwise, an opinion that the licence holder who the aviation examiner or medical examiner or registered medical practitioner has examined or treated may be unable to exercise safely the privileges to which the licence holder's medical certificate relates because of—
i: illness or any bodily or mental infirmity, defect, incapacity, or risk of incapacity suffered by the licence holder; or
ii: the effect on the licence holder of treatment for any illness, infirmity, defect, incapacity, or risk of incapacity:
c: stating to the Director, whether in writing or otherwise,—
i: the nature of a licence holder's illness, infirmity, defect, incapacity, or risk of incapacity; or
ii: the effect on a licence holder of treatment for any illness, infirmity, defect, incapacity, or risk of incapacity.
27D: Medical examination, report, and disclosure
1: Before the Director issues a medical certificate, an applicant must have a medical examination by a medical examiner who must forward his or her report to the Director.
2: The Director may, by written notice, require any applicant to disclose, or authorise the disclosure of, any information relevant to his or her medical condition or history for the purpose of determining whether or not the applicant is eligible for a medical certificate under section 27B
27E: Expiry of medical certificate
The Director may, on receiving an application for a medical certificate from a licence holder before the expiry of his or her existing medical certificate, grant an extension of no more than 60 days from the expiry date of the licence holder's existing medical certificate with any additional conditions, restrictions, or endorsements as the Director considers necessary.
27F: Designation of aviation examiners and medical examiners
1: The Director must designate, by issuing an aviation document under section 9, 1 section 27D
2: The Director may designate, by issuing an aviation document under section 9
27G: General directions and emergency directives
1: The Director may, by notice in the Gazette
a: conducting examinations of applicants and licence holders, and reporting the results of those examinations to the Director; and
b: providing exceptions for temporary medical conditions to the reporting requirements set out in section 27C
c: specifying the requirements of examinations or other clinical matters, which must be reasonable, including, but not limited to,—
i: the medical content of examinations:
ii: the interpretation and analysis of results of examinations:
iii: the significance of results of examinations for the purpose of determining whether or not an applicant is eligible for a medical certificate under section 27B
2: Before issuing general directions under subsection (1)
3: General directions issued in relation to the matters specified in subsection (1)(a) or (c)
a: notified in writing to aviation examiners or medical examiners; and
b: incorporated in a medical manual issued by the Director.
4: The Director may issue directives in emergency situations without consultation or prior notice in the Gazette
a: must be published in the Gazette
b: expire on the day that is 90 days after the date on which they were issued.
5: The Director may reissue, under subsection (1) subsection (4)
27H: Investigation of medical condition of licence holder
1: The Director may, by written notice, require any licence holder, at the licence holder's expense, to undertake any tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, at any time before the expiry of his or her medical certificate, if the Director has reasonable grounds to believe that the licence holder—
a: may be unable to exercise safely the privileges to which the medical certificate relates; or
b: has obtained his or her medical certificate fraudulently.
2: If the Director has delegated under section 27O section 27B
3: The Director may, by written notice, require any licence holder, at the Authority's expense, to undertake any tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, at any time before the expiry of his or her medical certificate if—
a: the Director—
i: is monitoring licence holders on the basis of random selection from the register of current medical certificates that is required to be maintained under section 27B(7)
ii: has reasonable grounds to believe that the licence holder's medical certificate was issued in error; or
iii: is monitoring aviation examiners or medical examiners for compliance with the requirements of this Act or the rules; and
b: the Director has reasonable grounds to believe that any of those tests, examinations, re-examinations, or medical information are necessary to investigate the matters specified in paragraph (a)
4: The Director may, by written notice, require any licence holder to disclose, or authorise the disclosure of, any relevant information for the purpose of determining whether or not the licence holder—
a: meets the medical standards prescribed in the rules; or
b: is able to exercise safely the privileges to which the medical certificate relates.
27I: Revocation, suspension, amendment, and surrender of medical certificate
1: If the Director has reasonable grounds to believe that a licence holder may be unable to exercise safely the privileges to which the licence holder's medical certificate relates, the Director may, by written notice to the licence holder,—
a: suspend any medical certificate issued to the licence holder; or
b: impose or amend any conditions, restrictions, or endorsements on any medical certificate issued to the licence holder.
2: If the Director has reasonable grounds to believe that a licence holder is unable to exercise safely the privileges to which the licence holder's medical certificate relates, the Director must, by written notice to the licence holder,—
a: suspend any medical certificate issued to the licence holder; or
b: revoke any medical certificate issued to the licence holder; or
c: impose or amend any conditions, restrictions, or endorsements on any medical certificate issued to the licence holder.
3: If the Director has reasonable grounds to believe that a person who has been delegated authority under section 27O
a: may, by written notice to the licence holder,—
i: suspend any medical certificate issued to the licence holder; or
ii: revoke any medical certificate issued to the licence holder; or
iii: impose or amend any conditions, restrictions, or endorsements on any medical certificate issued to the licence holder; and
b: may, by written notice to the person with delegated authority, revoke that person's delegated authority.
4: Any notice issued under this section must state the grounds for the Director's decision.
5: A notice of suspension issued under subsection (1)(a) or subsection (2)(a) or subsection (3)(a)(i) subsection (7)
6: Any conditions, restrictions, or endorsements that are imposed or made under subsection (1)(b) or subsection (2)(c) or subsection (3)(a)(iii) subsection (7)
7: If a notice is issued under subsection (1) or subsection (2) or subsection (3)
a: impose or amend conditions, restrictions, or endorsements for a specified period:
b: withdraw any conditions, restrictions, or endorsements:
c: disqualify the licence holder from holding the medical certificate for a specified period:
d: revoke the medical certificate:
e: cancel the suspension.
8: If the Director revokes a medical certificate under subsection (2)(b) or subsection (3)(a)(ii) or subsection (7)(d) or subsection (11) subsection (7)(a) subsection (7)(c) section 27L
9: A person who has had his or her medical certificate revoked, withdrawn, or suspended or who is disqualified from holding the medical certificate for a specified period must surrender the medical certificate to the Director, a person authorised by the Director, or a member of the police.
10: If the Director issues a notice under this section, the Director—
a: must also, if practicable, notify any aviation document holder affected by the notice, other than the licence holder, if the Director reasonably considers it necessary for reasons of aviation safety; and
b: may notify any other affected aviation document holder.
11: The Director may, by written notice, revoke a medical certificate if a licence holder fails, without reasonable excuse, to comply with a demand under section 27H(1) or section 27H(3) or section 27H(4)
12: Any licence holder may return his or her medical certificate to the Director and ask the Director, in writing, to cancel the medical certificate.
13: If a licence holder asks the Director to cancel his or her medical certificate, the Director must—
a: cancel the medical certificate; and
b: update the register of current medical certificates.
27J: Appointment of convener and deputy convener
1: The Minister must—
a: appoint a convener and a deputy convener for a period of no longer than 3 years; and
b: consult with the Director, and other parties as the Minister thinks fit, before making either appointment; and
c: take into account any representations made under paragraph (b)
2: The Minister may renew an appointment as convener or deputy convener for 1 or more periods, each of which may not exceed 3 years.
3: If the Minister renews an appointment, he or she must—
a: consult with the Director, and other parties as the Minister thinks fit, before making the renewal; and
b: take into account any representations made under paragraph (a)
4: The convener and the deputy convener must—
a: be registered medical practitioners who are suitably qualified, and experienced or knowledgeable in civil aviation; and
b: be able to represent the public interest in aviation safety.
5: If the convener is unavailable for any reason, the deputy convener must discharge the duties of the convener under this section until—
a: the convener is available; or
b: the Minister has appointed a new convener.
27K: Cancellation of appointment as convener or deputy convener
1: The Minister may cancel a person's appointment under section 27J(1)
2: Before cancelling an appointment, the Minister must—
a: give the person written notice of the matters that constitute grounds for cancellation; and
b: give the person a reasonable opportunity to make representations that explain why his or her appointment should not be cancelled; and
c: take into account any representations made under paragraph (b)
3: If the Minister cancels an appointment, the Minister must give the person written notice of the cancellation that sets out the grounds for the cancellation.
27L: Review of decisions regarding medical certificates or applications
1: A licence holder or an applicant may, within 20 working days of a decision being made, ask the convener in writing to review the following decisions made by the Director about that person's medical certificate or application:
a: any decision made under section 27B section 27B(5)(b)
b: any decision made under section 27I
i: section 27I(1)
ii: section 27I(2)(a)
iii: section 27I(2)(c)
iv: section 27I(3)(a)(i)
v: section 27I(3)(a)(iii)
2: If such a request is made, the convener must, as soon as practicable, review the decision.
3: The convener—
a: must draw on the advice and expertise of at least 1 person who the convener is satisfied is suitably qualified and experienced to assist the convener in his or her assessment of the decision that is under review; and
b: must have regard to the purpose and scheme of the Act and the Director's duties under the Act when carrying out his or her review of the decision; and
c: may require the person who asked for the review, at that person's expense, to undertake any other tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, as the convener considers reasonably necessary to carry out his or her review of the decision; and
d: must receive and consider the relevant evidence provided under subsection (6)
4: The convener must, as soon as practicable, report the results of his or her review to the Director in writing.
5: The Director must, within 10 working days of receiving the convener's report, implement the results of the decision contained within the convener's report or, if the Director does not implement the convener's report, notify the licence holder or applicant, in writing, of the Director's reasons for not doing so.
6: The licence holder or applicant or Director may, either directly or through his or her medical experts, participate in the review process by providing relevant evidence to the convener regarding any medical matter at issue with respect to the decision that is under review.
7: The convener may not review a decision made by the Director if the convener—
a: acted as an aviation examiner or medical examiner of the person requesting the review with respect to that person's application for a medical certificate; or
b: has any other conflict of interest with respect to the person's medical certificate.
8: Any decision by the Director under review by the convener remains in force until the Director makes a final decision under subsection (5)
27M: Referral to convener by agreement
1: An application for a medical certificate may, by agreement in writing between the Director and the applicant, be referred to the convener for advice before the Director makes a decision on the application.
2: If an application is referred to the convener under subsection (1)
a: the deadline imposed on the Director under section 27B(1)
b: the convener must,—
i: as soon as practicable, assess the application; and
ii: draw on the advice and expertise of at least 1 person who the convener is satisfied is suitably qualified and experienced to assist the convener in his or her assessment of the application; and
iii: require the applicant, at the applicant's expense, to undertake any tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, that the convener considers reasonably necessary to carry out his or her assessment of the application; and
iv: have regard to the purpose and scheme of the Act and the Director's duties under the Act when making his or her assessment of the application; and
v: as soon as practicable, report the results of his or her assessment to the Director in writing; and
vi: receive and consider the relevant evidence provided under subsection (5)
3: The Director must, within 10 working days of receiving the convener's report,—
a: consider the convener's report; and
b: make his or her decision in writing; and
c: provide to the applicant—
i: a copy of the convener's report; and
ii: a copy of the Director's decision.
4: If an application is referred to the convener under this section, the applicant may not ask the convener to review the Director's eventual decision.
5: The applicant or Director may, either directly or through his or her medical experts, participate in the convener's assessment of the application by providing relevant evidence to the convener regarding any medical matter at issue with respect to that application.
6: The convener may not assess the application if the convener—
a: acted as an aviation examiner or medical examiner of the applicant with respect to that person's application for a medical certificate; or
b: has any other conflict of interest with respect to the person's medical certificate.
27N: Delegation of Director's powers under this Part to registered medical practitioners who are employees of Authority
1: The Director may, either generally or particularly, delegate to any suitably qualified registered medical practitioner who is an employee of the Authority any of the Director's functions and powers under this Part or under the rules relating to medical certification.
2: Every delegation under this section must be in writing.
3: The Director may not delegate the power to delegate under this section.
4: The provisions of subsections (6), (7), (9), (10), and (11) of section 23
a: references in those provisions to the Authority were references to the Director; and
b: references in those provisions to any employee of the Authority were references to any employee of the Authority other than the Director.
5: Any delegation under this section may be made to a suitably qualified registered medical practitioner who is the holder of a specified office of the Authority.
27O: Delegation of Director's power under this Part to medical examiners who are not employees of Authority
1: The Director may, either generally or particularly, delegate to any suitably qualified medical examiner who is not an employee of the Authority any of the Director's functions and powers under this Part or under the rules relating to medical certification other than the power under this Part to revoke medical certificates.
2: Despite subsection (1) section 27B(1) section 27Q(3)
3: Every delegation under this section must be in writing.
4: Subject to any general or special directions given or conditions imposed by the Director, any medical examiner to whom any functions or powers are delegated under this section may exercise those functions and powers in the same manner and with the same effect as if they had been conferred or imposed on that person directly by this Act and not by delegation.
5: Any delegation under this section may be made to a specified medical examiner or a specified class of medical examiner or to the holder or holders of a specified office.
6: Every delegation under this section must be given for a specified period but in any event must be revocable at will.
7: No delegation under this section may—
a: affect or prevent the exercise of any function or power by the Director; or
b: affect the responsibility of the Director for the actions of any person acting under the delegation.
8: Every delegation under this section continues in force until it is revoked or it expires, whether or not the person who made the delegation ceases to hold office.
9: Every person purporting to act under any delegation under this section may, when reasonably requested to do so, produce evidence of his or her authority to so act.
10: The Director may not delegate under this section any of his or her functions or powers under section 27L or section 27M
27P: Right of appeal to District Court
Any person affected by a decision of the Director under section 27B section 27B(5)(b) section 27I(7), section 27I(11), section 27L, or section 27M section 66
27Q: Transitional provisions
1: Part 67 of the rules
a: any application for a medical certificate lodged before the commencement of this Part:
b: any action begun with respect to a medical certificate before the commencement of this Part.
2: In the absence of rules providing for the issue of aviation documents to aviation examiners or medical examiners,—
a: the Minister must establish the selection criteria for the issue of aviation documents to aviation examiners or medical examiners or classes of aviation examiners or medical examiners that the Director must use to issue those aviation documents, including any reasonable requirements—
i: for examinations, training, and experience; and
ii: for ongoing training and development; and
iii: relating to the classification of aviation examiners and medical examiners and any related standards and restrictions on the exercise of their functions and powers; and
b: the Director must designate, by issuing an aviation document under section 9 section 27D
c: the Director may designate, by issuing an aviation document under section 9
3: In the absence of rules under section 30(b)(x) or section 30(b)(xi)
a: any requirements for the grant of delegations by the Director under section 27O(2)
b: any requirements for the purposes of determining suitably qualified medical examiners and establishing the criteria for standard medical assessments under section 27O(2)
27R: Savings
Any medical certificate issued under the rules before the commencement of this Part is deemed to be a medical certificate issued under this Part.
6: Requirement for aviation document
Section 7(1)
s: any person who is an aviation examiner or medical examiner.
7: Rules relating to general matters
1: Section 30(a) subparagraph (vi)
via: aviation examiners or medical examiners: .
2: Section 30(b)
ix: the requirements relating to the classification of aviation examiners and medical examiners and any related standards and restrictions on the exercise of their functions and powers:
x: the requirements for the grant of delegations by the Director under section 27O(2)
xi: the requirements for the purposes of determining suitably qualified medical examiners and establishing the criteria for standard medical assessments under section 27O(2)
xii: the requirements and criteria for determining medical experts acceptable to the Director for the purposes of reaching an accredited medical conclusion: .
8: Fees and charges
Section 38(1) paragraph (b)
ba: to reimburse the Authority and the convener for costs directly associated with the Director's functions and the convener's functions under Part 2A .
9: Amendments to offence provisions
The principal Act is amended by inserting, after section 46
46A: Acting without required medical certificate
1: Every person who exercises the privileges of any aviation document or operates an aircraft solo commits an offence if that person—
a: does not hold an appropriate current medical certificate issued under Part 2A
b: knows or has reasonable grounds to suspect that he or she can no longer exercise safely the privileges to which his or her medical certificate relates; or
c: fails to comply with any conditions, restrictions, or endorsements specified by the Director under section 27B(4)
2: Every person who commits an offence under subsection (1)
46B: Fraudulent, misleading, or intentionally false statements to obtain medical certificate
1: Every person commits an offence who makes or causes to be made—
a: any fraudulent, misleading, or intentionally false statement for the purpose of obtaining a medical certificate under Part 2A
b: any fraudulent, misleading, or intentionally false entry in any logbook, record, form, or report that is required to be kept, made, or used to show compliance with any conditions, restrictions, or endorsements placed on any medical certificate under Part 2A
c: any reproduction or alteration for fraudulent purposes of any medical certificate issued under Part 2A
d: any fraudulent, misleading, or intentionally false statement during an investigation under section 27H section 27L section 27M
2: Every person who commits an offence under subsection (1)
46C: Failure to disclose information required by Director
1: Every person commits an offence who fails to disclose, without reasonable excuse, information required by the Director under section 27C(1) or section 27H
2: Every person who commits an offence under subsection (1)
10: Evidence and proof
1: Section 71(1) paragraph (c)
ca: the production of a written statement signed by the Director to the effect that on a specified date a person was or was not the holder of a medical certificate issued under Part 2A .
2: Section 72I(4) paragraph (a)
aa: the issue, suspension, or revocation of medical certificates; or .
11: Consequential amendments to principal Act
The principal Act is consequentially amended in the manner indicated in the Schedule.
12: Consequential amendments to rules
1: The rules are amended by revoking the following rules:
a: rule 61.35(b) to (d) (medical requirements):
b: rule 63.23(b) (medical requirements):
c: rule 63.23(c) (medical requirements):
d: rule 65.25(b) (medical requirements):
e: rule 65.25(c) (medical requirements):
f: rule 67.03(b) (application):
g: rule 67.05 (aviation medical assessors and designated medical examiners):
h: rule 67.07 (medical examinations):
i: rule 67.09 (issue of medical certificates):
j: rule 67.13 (review assessments):
k: rule 67.15 (special medical assessments):
l: rule 67.19(a) (certificates, reports and records):
m: rule 67.53 (general requirements).
2: Rule 1.1 (general definitions) is amended by revoking the definitions of aviation medical assessor designated medical examiner flexibility
3: Rule 1.1 (general definitions) is amended by revoking the definition of valid valid
a: in respect of a licence or rating, the document has been issued in accordance with the Civil Aviation Rules, and is not expired, suspended, or revoked; and
b: in respect of a medical certificate, the medical certificate has been issued in accordance with the Act, and is not expired, suspended, or revoked.
4: Rule 61.35(a)(1) (medical requirements) is amended by omitting the words Part 67 of these rules the Act
5: Rule 61.43(a) (examination for continued fitness or proficiency) is amended by—
a: omitting the words undergo a medical or other take an
b: omitting the words continued fitness or
6: Rule 61.43(b) (examination for continued fitness or proficiency) is amended by omitting the words medical or other
7: Rule 61.43(c) (examination for continued fitness or proficiency) is amended by omitting the words undergoes a medical or other takes an
8: The heading to rule 61.43 (examination for continued fitness or proficiency) is amended by omitting the words continued fitness or
9: Rule 63.27(a) (examination for continued fitness or proficiency) is amended by—
a: omitting the words undergo a medical or other take an
b: omitting the words continued fitness or
10: Rule 63.27(b) (examination for continued fitness or proficiency) is amended by omitting the words medical or other
11: Rule 63.27(c) (examination for continued fitness or proficiency) is amended by omitting the words undergoes a medical or other takes an
12: The heading to rule 63.27 (examination for continued fitness or proficiency) is amended by omitting the words continued fitness or
13: Rule 65.27(a) (examination for continued fitness or proficiency) is amended by—
a: omitting the words undergo such medical or other take such an
b: omitting the words fitness or
14: Rule 65.27(b) (examination for continued fitness or proficiency) is amended by omitting the words undergoes a medical or other takes an
15: The heading to rule 65.27 (examination for continued fitness or proficiency) is amended by omitting the words continued fitness or
16: Rule 67.03(a) (application) is amended by omitting the words this Part the Act
17: Rule 67.03(a)(4) (application) is amended by omitting the words and the relevant Aviation Medical Assessor
18: Rule 67.03(a)(5) (application) is amended by omitting the words Aviation Medical Assessor or Designated Medical Examiner medical examiner
19: Rules 61.105(2) (student pilots flying solo), 61.153(a)(2) (private pilots licences), 61.203(3) (commercial pilot licences), 63.23(a)(1) (flight engineers licences), 63.53(2) (eligibility requirements), 65.25(a)(1) (air traffic controller licences), 65.53(a)(2) (eligibility requirements), and 105.5(c)(3) are amended by omitting the expression Part 67 the Act |
DLM113322 | 2001 | Oaths and Declarations Amendment Act 2001 | 1: Title
1: This Act is the Oaths and Declarations Amendment Act 2001.
2: In this Act, the Oaths and Declarations Act 1957 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: New
section 9 The principal Act is amended by repealing section 9
9: Declarations made in New Zealand
A declaration made in New Zealand must be in the form in the First Schedule
a: a person enrolled as a barrister and solicitor of the High Court; or
b: a Justice of the Peace; or
c: a notary public; or
d: the Registrar or a Deputy Registrar of the Court of Appeal; or
e: a Registrar or Deputy Registrar of the High Court or a District Court; or
f: some other person authorised by law to administer an oath; or
g: a member of Parliament; or
h: a person who—
i: is a fellow of the body (incorporated under the Incorporated Societies Act 1908
ii: is acting in the employment of the holder of a practising certificate as a barrister and solicitor of the High Court; or
i: an employee of the Land Transport Safety Authority of New Zealand; or
j: an officer in the service of the Crown, or of a local authority within the meaning of the Local Government Act 1974 Gazette
4: Consequential repeals
The following enactments are repealed:
a: Oaths and Declarations Amendment Act 1965 (1965 No 102)
b: Oaths and Declarations Amendment Act 1972 (1972 No 89)
c: so much of Schedule 3 State-Owned Enterprises Act 1986
d: Oaths and Declarations Amendment Act 1996 (1996 No 136)
e: so much of the Schedule Postal Services Act 1998 |
DLM112790 | 2001 | Legal Services Amendment Act 2001 | 1: Title
1: This Act is the Legal Services Amendment Act 2001.
2: In this Act, the Legal Services Act 2000 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: New
section 117A
1: The principal Act is amended by inserting, after section 117
117A: Repayments in respect of certain legal aid granted under former Act
1: This section applies if legal aid was granted under the former Act in respect of civil proceedings, but—
a: the proceedings were not commenced; or
b: the proceedings were commenced but not completed; or
c: there are no proceeds of the proceedings; or
d: the proceeds of the proceedings are not enough to cover the repayment payable (by virtue of section 15(2) section 18
2: The Agency may give the applicant concerned notice requiring the applicant to contribute a further amount if—
a: this section applies; and
b: a further contribution could have been required under the former Act.
3: The further amount required to be contributed under subsection (2)
4: This Act applies to a further amount required to be contributed under subsection (2)
5: This section applies in respect of completed proceedings—
a: whether they were completed before or after the commencement of this section; and
b: whether or not a repayment has previously been made or required to be made (before or after the commencement of this section) under section 15(2)
2: Section 117(1) but, subject to section 117A |
DLM128645 | 2001 | Land Transport (Road Safety Enforcement) Amendment Act 2001 | 1: Title
1: This Act is the Land Transport (Road Safety Enforcement) Amendment Act 2001.
2: In this Act, the Land Transport Act 1998 the principal Act
1: Preliminary provisions
2: Commencement
1: Sections 4(1) (2) (4) 5 to 10 14(1) (3) (4) (5)
2: The rest of this Act comes into force on the day on which this Act receives the Royal assent.
3: Purpose
The purpose of this Act is to improve road safety enforcement by—
a: removing the defence of error or possible error in the result of an evidential breath test and ensuring that an evidential breath test is conclusive, but subject to safeguards to protect the rights of defendants:
b: enabling certificates of accuracy for distance-measuring devices, speed-measuring devices, approved vehicle surveillance equipment, and tuning forks to be admitted as evidence in proceedings for speeding offences against any bylaws or enactment, other offences against the principal Act, and offences against the Road User Charges Act 2012
c: enabling certificates of accuracy of weighing devices to be admitted as evidence in proceedings for any road user charge offence as well as for offences against the principal Act:
d: confirming that fines of up to $1,000 may be prescribed for offences relating to temporary speed limits on roads controlled by road controlling authorities and for other offences under the Traffic Regulations 1976 Section 3(b) amended 1 August 2012 section 94 Road User Charges Act 2012
2: Substantive amendments and related provisions
4: Interpretation
1: Section 2(1) carriage certificate of compliance section 75A
2: Section 2(1) conclusive evidential breath-testing device
3: Section 2(1) speed limit the Transport Act 1962 this Act, the Transport Act 1962 Local Government Act 1974 Transit New Zealand Act 1989
4: Section 2(2) for any purpose specified in subsection (1) or in section 75A(5)
5: Defences
1: Section 64(2) sections 68 to 75 sections 68 to 75A, and 77
2: Section 64(4)(a) the breath screening test or evidential breath test
6: New
section 70A The principal Act is amended by inserting, after section 70
70A: Right to elect blood test
1: If the result of a person's evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a)
2: This section is for the avoidance of doubt.
7: Who must give blood specimen at places other than hospital or surgery
Section 72(1)(b) (other than a test carried out by means of a conclusive evidential breath-testing device that indicates that the proportion of alcohol in the person's breath exceeds 600 micrograms of alcohol per litre of breath)
8: New
section 75A The principal Act is amended by inserting, after section 75
75A: Certificates of compliance for evidential breath-testing devices
1: An evidential breath-testing device must be supported by a certificate of compliance given under this section by a person authorised for the purpose by the Science Minister.
2: At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device (being an offence committed on or after the commencement of this section), the prosecution must produce to the court a certified copy of the certificate of compliance. The certification must be given by a person authorised for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate.
3: Subject to subsection (4) subsection (2)
4: In the absence of proof to the contrary, a document purporting to be a certificate of compliance or a certified copy of a certificate of compliance—
a: must be treated as such a certificate or certified copy; and
b: is conclusive evidence of the sufficiency of the authority of the person who signed the document.
5: After consultation with the Minister and the Minister of Justice, the Minister of Police must, by notice in the Gazette
6: Without limiting subsection (5)
a: in the case of any kind of evidential breath-testing device approved after the commencement of this section, the notice under subsection (5)
b: a notice under subsection (5)
c: a notice under subsection (5)
d: a notice under subsection (5)
9: Presumptions relating to alcohol testing
1: Section 77(3)(a)
a: by omitting the word immediately without delay
b: by omitting the word sufficient conclusive
2: Section 77(5)
10: Mandatory 28-day suspension of driver licence in certain circumstances
1: Section 95 subsection (1)
1A: If an enforcement officer believes on reasonable grounds that a person has undergone an evidential breath test and has been found to have a breath alcohol concentration exceeding 800 micrograms of alcohol per litre of breath,—
a: the enforcement officer must give the person a notice under subsection (1)(a) section 70A
b: a further notice is not required and must not be given under subsection (1)(a)
2: Section 95
8: The suspension of a person's driver licence in the circumstances referred to in subsection (1A)
a: the blood test shows that he or she had a blood alcohol concentration of, or less than, 160 milligrams of alcohol per 100 millilitres of blood; and
b: the result of the blood test is notified to the person before the close of the 28-day suspension period.
11: Evidence of testing and accuracy of speed-measuring devices, etc
Section 146(1) an offence against this Act a speeding offence against any bylaws or enactment, any other offence against this Act, or an offence against the Road User Charges Act 1977
12: Evidence of accuracy of weighing devices and sites
Section 147 subsections (1) (7) an offence against this Act or an offence against the Road User Charges Act 1977
13: Fines under
Traffic Regulations 1976
1: Despite sections 77(1)(q) 199(1)(d) Transport Act 1962 sections 167(1)(h) 218 Land Transport Act 1998 Traffic Regulations 1976 section 167(1)(h)
2: Subsection (1)
14: Consequential amendments
1: Section 19B Summary Proceedings Act 1957 subsection (1)
1: If a person undergoes an evidential breath test under section 69 of the Land Transport Act 1998 section 77(3)(a) of the Land Transport Act 1998
2: The Transport Act 1962
a: by omitting from section 77(1)(q) $100 $1,000
b: by omitting from section 199(1)(d) $500 $1,000
3: Schedule 1 Summary Proceedings Regulations 1958
a: by omitting from form 5B
b: by omitting the words *The result of that evidential breath test, being a test carried out by means of a conclusive evidential breath-testing device, indicated that the proportion of alcohol in your breath exceeded 600 micrograms of alcohol per litre of breath.
4: Clause 8 Transport (Breath Tests) Notice (No 2) 1989
5: Schedule 3 Land Transport (Offences and Penalties) Regulations 1999
2A: If a blood sample has been taken, the suspension will cease to have effect when you are notified of the result of the blood test, but only if—
•: the blood test shows that you had a blood alcohol concentration of, or less than, 160 milligrams of alcohol per 100 millilitres of blood; and
•: the result of the blood test is notified to you before the close of the 28-day suspension period.
6: Notices in the form set out in Schedule 3 Land Transport (Offences and Penalties) Regulations 1999 subsection (5) section 95
15: Savings relating to certificates of accuracy
1: This section applies to an alleged offence if—
a: the offence was committed on or after 1 March 1999 and before the commencement of this Act; and
b: the offence is a speeding offence against any bylaws or enactment, any other offence against the principal Act, or an offence against the Road User Charges Act 1977
c: the proceedings for the offence are heard by a court on or after the commencement of this section.
2: Certificates may be given under section 146 147 subsection (1)(a)
16: Saving and transitional provision relating to certificates of compliance
1: For the purposes of section 75A(5)
2: Despite section 2(1) section 75A |
DLM110942 | 2001 | Armed Forces Discipline Amendment Act 2001 | 1: Title
1: This Act is the Armed Forces Discipline Amendment Act 2001.
2: In this Act, the Armed Forces Discipline Act 1971 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Effect of period spent in custody awaiting trial
1: The heading to section 81A awaiting trial before being sentenced
2: Section 81A(1) was held in custody awaiting trial has been held in custody
3: Section 81A(2) while the offender was already serving a sentence of imprisonment or detention that is unrelated to any charge before the court-martial
4: Summary punishments
1: Section 102(5A) was held in custody awaiting to be tried summarily or dealt with summarily has been held in custody
2: Section 102(5B) while the offender was already serving a sentence of imprisonment or detention that is unrelated to any charge that is before the officer exercising summary powers
5: Courts-martial to sit in open court
Section 131 subsection (5)
5: An order specified in paragraph (a) or paragraph (b) of subsection (3) section 139(1) or section 140 of the Criminal Justice Act 1985 subsection (9) of this section
a: may be made by a convening officer or court-martial for a limited period or permanently; and
b: if it is made for a limited period, may be renewed for a further period or periods or made permanent by—
i: the convening officer or court-martial at any time before the trial is concluded:
ii: any reviewing authority (within the meaning of paragraph (b) or paragraph (c) of section 151(1) of this Act
c: if it is made permanently, may be reviewed by—
i: the convening officer or court-martial at any time before the trial is concluded:
ii: any such reviewing authority at any time.
6: Constitution and powers of reconsidering authorities
Section 166(4A) awaiting trial, as specified , as is required to be specified
7: Effect of period spent in custody awaiting trial
1: The heading to section 177A awaiting trial before being sentenced
2: Section 177A(1) awaiting trial, as specified , as is required to be specified |
DLM90125 | 2001 | Maori Soldiers Trust Amendment Act 2001 | 1: Title
1: This Act is the Maori Soldiers Trust Amendment Act 2001.
2: In this Act, the Maori Soldiers Trust Act 1957 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: New
section 5A The principal Act is amended by inserting, after section 5
5A: Investment otherwise than in Maori Trustee's Common Fund
1: Despite sections 4 and 5 section 24 of the Maori Trustee Act 1953
2: The care, diligence, and skill that a prudent person of business would exercise in managing the affairs of others must be exercised—
a: by the Trust Committee in giving directions under section 24 of the Maori Trustee Act 1953
b: subject to directions given by the Trust Committee, by the Maori Trustee in investing money held for the purposes of the Trust. |
DLM89676 | 2001 | Te Ture Whenua Maori Amendment Act 2001 | 1: Title
1: This Act is both—
a: Te Ture Whenua Maori Amendment Act 2001; and
b: the Maori Land Amendment Act 2001.
2: In this Act, Te Ture Whenua Maori Act 1993 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Interpretation of English terms
1: Section 4 paragraph (c)(iv) alienation years (including any term or terms of renewal)
2: Section 4 order order
a: means—
i: an order, judgment, decision, or determination of the Maori Land Court or the Maori Appellate Court; and
ii: an order made by a Registrar in the exercise of a jurisdiction or power pursuant to section 39(1)
iii: an order made by the Chief Judge under section 44
b: includes a refusal to make an order, judgment, decision, or determination of a kind referred to in paragraph (a)(i) or paragraph (a)(ii) or paragraph (a)(iii) .
4: New
section 24A The principal Act is amended by inserting, after section 24
24A: Powers of Court under
Contracts (Privity) Act 1982 Contractual Remedies Act 1979
1: Subject to subsection (2)
a: by the Contracts (Privity) Act 1982
b: by any of the provisions of sections 4, 7(6), 7(7), and 9 of the Contractual Remedies Act 1979
2: A power conferred on the Court by subsection (1) section 7(1) of the Contracts (Privity) Act 1982 section 7(6) or section 9 of the Contractual Remedies Act 1979 section 18(1)(d) of this Act
5: Power of Court to make order to restore effect of lost instruments of alienation
Section 25 subsection (3)
3: Instead of or in addition to making an order declaring the nature and effect of the instrument, the Court may, on an application under this section, make an order vesting land or an interest in land to which the instrument related in—
a: any person or persons claiming under the instrument; or
b: any other person or persons claiming under or through the person or persons specified in paragraph (a)
6: New section 30A inserted
Section 6 repealed 1 July 2002 59(2) Te Ture Whenua Maori Amendment Act 2002/Maori Land Amendment Act 2002
7: Chief Judge may correct mistakes and omissions
1: Section 44(1) the Court or a Registrar (including an order made by a Registrar before the commencement of this Act)
2: Section 44(4) Part V Part VI
8: Appointment of receiver to enforce charges, etc
Section 83(6) years (including any term or terms of renewal)
9: Court not to grant confirmation unless satisfied of certain matters
Section 152(1)(g) longer (including any term or terms of renewal)
10: New
section 228
1: The principal Act is amended by repealing section 228
228: Trustees' powers of alienation
1: Despite anything in the trust order, but subject to subsection (2) section 243(7) section 6 of the Maori Affairs Amendment Act 1967
a: at least three-quarters of the owners, where no owner has a defined share in the land; or
b: the persons who together own at least 75% of the beneficial freehold interest in the land.
2: Subsection (1) and section 147(2)
3: Every alienation of any land (being Maori freehold land or land that ceased to be Maori land by reason of the registration of a status declaration issued under section 6 of the Maori Affairs Amendment Act 1967 Part VIII
2: Section 13 Te Ture Whenua Maori Amendment Act 1994
11: Acquisition of land by trustees
Section 243(7) land, (other than Maori freehold land or land that ceased to be Maori land by reason of the registration of a status declaration issued under section 6 of the Maori Affairs Amendment Act 1967
12: Incorporation's powers of alienation
Section 254(1)(a)(ii) years (including any term or terms of renewal)
13: Certain instruments require noting by Registrar
Section 255(b)(i) years (including any term or terms of renewal)
14: Disposal of land on winding up of incorporation
Section 283(2 years (including any term or terms of renewal)
15: Aggregation orders
1: Section 308(4) The Subject to subsection (5)
2: Section 308
5: Despite subsection (4) subsections (6) and (7) section 293
6: Where land that will be affected by the cancellation of an aggregation order is—
a: land in respect of which a trust is constituted under Part XII
b: land vested in a Maori incorporation,— the Court may not exercise the power conferred on the Court by subsection (5)
7: The Court may not, under section 293(1) subsection (5)
16: Maori reservations for communal purposes
1: Section 338(12) years (including any term or terms of renewal)
2: Section 338(14) years (including any term or terms of renewal)
17: Maori reservations for communal purposes
1: Section 338(8) in accordance with , and be subject to,
2: Section 338 subsection (17)
17: Where any Maori reservation (set apart under any Act repealed by this Act or the corresponding provisions of any former Act) is subsisting at the commencement of this Act, this Act, and any regulations made under this Act, have effect,—
a: in relation to the Maori reservation, as if it were a Maori reservation set apart under this section; and
b: in relation to any vesting order made in respect of the Maori reservation (under any Act repealed by this Act or the corresponding provisions of any former Act), as if that vesting order were a vesting order made under this section.
18: New
section 338A The principal Act is amended by inserting, after section 338
338A: Regulations relating to trustees of Maori reservations
1: Regulations made under section 338(15)
a: specify—
i: terms for which those trustees or any of them are to be appointed:
ii: circumstances in which those trustees or any of them cease to hold office:
iii: circumstances in which those trustees or any of them may be removed from office by the Court:
iv: powers, authorities, and discretions that may be exercised by those trustees (in addition to those conferred on them by this Act) and the manner in which those trustees or any of them may exercise their powers, authorities, and discretions (including those conferred on them by this Act or the Trustee Act 1956
v: powers, authorities, and discretions conferred by the Trustee Act 1956
vi: conditions that must be complied with by those trustees:
b: authorise the Court to exercise in relation to those trustees (but not to the exclusion of the High Court) any of the powers and authorities conferred on the High Court by the Trustee Act 1956
2: Nothing in subsection (1)
a: the powers of the Court under section 338(8)
b: the generality of section 338(15)
19: Maori Reservations Regulations 1994
1: Subject to subsections (2) to (4) Maori Reservations Regulations 1994
2: Regulation 3 Maori Reservations Regulations 1994 paragraph (d)
3: Despite subsection (2)
a: the action of any person, in vacating office before the commencement of this Act, in accordance with regulation 3(d) Maori Reservations Regulations 1994
b: the action of any person, in declining to vacate office in accordance with regulation 3(d) Maori Reservations Regulations 1994
c: the action of the Court, in appointing any person as a trustee of a Maori reservation in the place of a person who has, before the commencement of this Act, vacated office in accordance with regulation 3(d) Maori Reservations Regulations 1994
4: Despite subsections (2) (3) regulation 3(d) Maori Reservations Regulations 1994
a: to be reinstated in office; or
b: to receive any compensation for loss of office by reason of his or her vacation of office in accordance with regulation 3(d) |
DLM91754 | 2001 | Habeas Corpus Act 2001 | 1: Title
This Act is the Habeas Corpus Act 2001.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Interpretation
In this Act, unless the context otherwise requires,— applicant application detention habeas corpus ad subjiciendum Judge Registrar working day High Court Rules 2016 Section 3 High Court Rules repealed 18 October 2016 section 183(c) Senior Courts Act 2016 Section 3 working day amended 18 October 2016 section 183(c) Senior Courts Act 2016
4: Application of Act to the Crown and Parliament
1: This Act binds the Crown.
2: Nothing in this Act limits or affects the power or authority of the House of Representatives to punish for contempt.
5: Purposes
The purposes of this Act are—
a: to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty:
b: to make better provision for restoring the liberty of persons unlawfully detained by establishing an effective procedure for applications to the High Court for the issue of a writ of habeas corpus, and the expeditious determination of those applications:
c: to provide certain unsuccessful parties in habeas corpus proceedings with a right of appeal to the Court of Appeal:
d: to abolish writs of habeas corpus other than the writ of habeas corpus ad subjiciendum Application for writ of habeas corpus
6: Application for writ of habeas corpus to challenge legality of detention
An application to challenge the legality of a person's detention may be made by an application for a writ of habeas corpus.
7: Manner of application for writ
1: An application for a writ of habeas corpus must be made to the High Court by originating application in the manner provided by the High Court Rules 2016
2: Despite subsection (1), nothing in that subsection excludes the inherent jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.
3: Despite subsection (1), the provisions of any High Court Rule providing for directions by the court before the hearing, or affecting the hearing, of an originating application or empowering the court to convene a conference of the parties to an originating application do not apply to an application.
4: No applicant may be disqualified for lack of capacity or standing.
5: In a proceeding for a writ of habeas corpus—
a: no party to the proceeding is entitled to general or special discovery of the documents of any other party to the proceeding or to an order for security for costs; and
b: the High Court Rules concerning discovery and inspection of documents and security for costs do not apply.
6: No fee is payable to the High Court for filing any document in respect of an application.
7: Section 153 Section 7(1) amended 18 October 2016 section 183(c) Senior Courts Act 2016 Section 7(7) amended 1 March 2017 section 183(b) Senior Courts Act 2016
8: Description of defendant by reference only to office
A defendant may be described in an application by reference only to the defendant's office if the defendant is—
a: the chief executive of the department for the time being responsible for the administration of the Corrections Act 2004
b: the Commissioner of Police, if the detained person is alleged to be illegally detained in Police custody except following the exercise of powers under the Immigration Act 2009
c: the chief executive of the department of State that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Immigration Act 2009
d: the chief executive of the New Zealand Customs Service
e: any other office holder prescribed by rules made in accordance with section 20 Section 8(a) replaced 30 March 2013 section 4 Habeas Corpus Amendment Act 2013 Section 8(b) amended 29 November 2010 section 406(1) Immigration Act 2009 Section 8(c) substituted 29 November 2010 section 406(1) Immigration Act 2009 Section 8(d) amended 26 May 2001 section 294(3) Customs and Excise Act 1996
9: Urgency
1: An application for a writ of habeas corpus must be given precedence over all other matters before the High Court unless a Judge of that court considers that the circumstances require otherwise
2: Judges and employees of the Ministry of Justice
3: The Registrar must allocate a date for the inter partes Section 9(1) amended 30 March 2013 section 5 Habeas Corpus Amendment Act 2013 Section 9(1) amended 1 October 2003 section 14(1) State Sector Amendment Act 2003
10: Urgency where no resident Judge available
1: If an application is filed at a Registry of the High Court in a place where no Judge is at that time available, the Registrar must ensure that the application is dealt with in some other place within the time limit referred to in section 9(3) Ministry of Justice
2: If subsection (1) applies, the Registrar must—
a: make such urgent enquiries as are necessary to determine where and by whom the application can most conveniently and expeditiously be dealt with; and
b: forward the application and any other relevant documents without delay to the Registrar at the place where the application is to be dealt with; and
c: without delay, inform every party to the proceeding of the action taken under this section.
3: This section applies in substitution for any provision of the High Court Rules 2016 Section 10(1) amended 1 October 2003 section 14(1) State Sector Amendment Act 2003 Section 10(3) amended 18 October 2016 section 183(c) Senior Courts Act 2016 Determination of applications
11: Interim orders for release from detention
1: The High Court may make an interim order for the release from detention of the detained person pending final determination of the application, and may attach any conditions to the order that the court thinks appropriate to the circumstances.
2: In the case of a detained person who is charged with an offence to which the Bail Act 2000
3: If a person has been released from detention under an interim order, the court may, on the application of the person released or any party to the proceeding or on the court's own initiative, make an order—
a: revoking the interim order; or
b: varying or revoking any condition of the interim order or substituting or imposing any other condition.
4: If a detained person who is in custody under a conviction is released under an interim order, the time during which the person is released does not count as part of any term of detention under the person's sentence if on a final determination of the application the writ of habeas corpus is refused.
12: Power of arrest of absconder etc
1: A constable section 11 constable
a: the person released has absconded, or is about to abscond, for the purpose of evading any appearance or further appearance in court in connection with the application or the person's original detention; or
b: the person has failed to comply with any condition attached to the interim order.
2: A person who is arrested under this section must be brought before the High Court as soon as possible.
3: The court may revoke the interim order if it is satisfied that the person had absconded or was about to abscond or had failed to comply with a condition attached to the interim order or an undertaking to the court in reliance on which the interim order was made.
4: A constable constable
5: If the constable constable constable Section 12(1) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 12(4) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 12(5) amended 1 October 2008 section 116(a)(ii) Policing Act 2008
13: Powers if person detained is young person
1: In dealing with an application in relation to a detained person who is under the age of 18 the Family Court Care of Children Act 2004
2: If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to the Family Court
3: An application referred under subsection (2) must be dealt with by the Family Court in all respects as if it were an application to that court under the Care of Children Act 2004 Section 13(1) amended 1 March 2017 section 261 District Court Act 2016 Section 13(1) amended 1 July 2005 section 151 Care of Children Act 2004 Section 13(2) amended 1 March 2017 section 261 District Court Act 2016 Section 13(3) amended 1 July 2005 section 151 Care of Children Act 2004
14: Determination of applications
1: If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.
1A: Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—
a: section 15(1)
b: an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.
2: A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—
a: a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 Part 5
b: a ruling as to bail by a court of competent jurisdiction.
3: Subject to section 13(2)
a: refusing the application for the issue of the writ; or
b: issuing the writ ordering the release from detention of the detained person.
4: All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.
5: A writ of habeas corpus may be in the form set out in the Schedule Section 14(1A) inserted 30 March 2013 section 6(1) Habeas Corpus Amendment Act 2013 Section 14(2)(a) substituted 1 July 2009 section 87 Court Martial Act 2007 Section 14(3) amended 30 March 2013 section 6(2) Habeas Corpus Amendment Act 2013
14A: Application for writ is civil proceeding under Courts (Remote Participation) Act 2010
To avoid doubt, an application for a writ of habeas corpus is a civil proceeding for the purposes of the Courts (Remote Participation) Act 2010 Section 14A inserted 30 March 2013 section 7 Habeas Corpus Amendment Act 2013
15: Finality of determinations
1: Subject to the rights of appeal conferred by section 16 sections 68 to 71
2: A person who has been released from detention in accordance with a writ of habeas corpus must not be re-arrested or detained again on substantially the same grounds as those considered by the court when the earlier release was ordered.
3: Subsection (2) has no application if the ground on which the earlier release was ordered was a jurisdictional or procedural defect that has since been corrected or no longer applies. Section 15(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 15(1) amended 1 January 2004 section 48(1) Supreme Court Act 2003 Appeals by certain unsuccessful parties
16: Certain unsuccessful parties may appeal
1: The provisions of the Senior Courts Act 2016
a: apply with respect to a determination refusing an application for the issue of a writ of habeas corpus; but
b: do not apply to a final determination that orders the release from detention of a detained person unless the substantive issue is the welfare of a person under the age of 16 years.
1A: With the leave of the Supreme Court, a party to the proceeding in which the determination was made may appeal to the Supreme Court—
a: against a determination refusing an application for the issue of a writ of habeas corpus:
b: if the substantive issue is the welfare of a person under the age of 16 years, against a final determination that orders the release from detention of a detained person.
2: The court cannot order that security for costs be given by the appellant in an appeal against the refusal of an application where the respondent in the appeal is the Crown or a public officer or other person purporting to act on behalf of the Crown.
3: No fee is payable to the Court of Appeal or the Supreme Court Section 16(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 16(1A) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 16(3) amended 1 January 2004 section 48(1) Supreme Court Act 2003
17: Urgency in hearing appeals
1: An appeal under this Act must be given precedence over all other matters before the Court of Appeal unless that court or a Judge of that court considers that the circumstances require otherwise
1A: The following must be given precedence over all other matters before the Supreme Court unless that court or a Judge of that court considers that the circumstances require otherwise
a: an application for leave to appeal against a decision of the Court of Appeal on an appeal under this Act:
b: an application for leave to appeal under paragraph (a) or paragraph (b) of section 16(1A)
c: an appeal against a decision of the Court of Appeal on an appeal under this Act:
d: an appeal under paragraph (a) or paragraph (b) of section 16(1A)
2: Judges of the Court of Appeal or the Supreme Court, and employees of the Ministry of Justice, must use their best endeavours to ensure that every appeal under this Act or paragraph (a) or paragraph (b) of section 16(1A) Section 17(1) amended 30 March 2013 section 8(1) Habeas Corpus Amendment Act 2013 Section 17(1A) inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 17(1A) amended 30 March 2013 section 8(2) Habeas Corpus Amendment Act 2013 Section 17(2) substituted 1 January 2004 section 48(1) Supreme Court Act 2003 Miscellaneous provisions
18: Abolition of certain writs
It is declared for the avoidance of doubt that all writs of habeas corpus other than the writ of habeas corpus ad subjiciendum
19: Application of Contempt of Court Act 2019
1: Subpart 2 sections 25 26(1) and (2)
2: Subpart 4 sections 25 26(1) and (2)
a: having been released under an interim order made under section 11, fails to comply with a condition attached to the order; or
b: wilfully fails to comply with a writ of habeas corpus ordering the release from detention of a person.
3: Subpart 4 sections 25 26(1) and (2) Section 19 replaced 26 August 2020 section 29 Contempt of Court Act 2019
20: Rules
1: Rules not inconsistent with this Act may be made under section 148 and the Supreme Court
2: Without limiting subsection (1), rules may be made under section 148 Schedule Section 20(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 20(1) amended 1 January 2004 section 48(1) Supreme Court Act 2003 Section 20(2) replaced 30 March 2013 section 9 Habeas Corpus Amendment Act 2013 Section 20(2) amended 1 March 2017 section 183(b) Senior Courts Act 2016
21: Supplementary procedure
If a matter arises in relation to an application for which this Act does not provide, the High Court must dispose of it as nearly as is practicable in a manner consistent with this Act, and to the extent that they are not inconsistent with this Act, in accordance with the High Court Rules 2016 Section 21 amended 18 October 2016 section 183(c) Senior Courts Act 2016
22: Repeals and amendments
(1), (2): Amendment(s) incorporated in the Act(s).
3: Sections 17 to 19 21 |
DLM90107 | 2001 | Maori Purposes Act 1991 Amendment Act 2001 | 1: Title
1: This Act is the Maori Purposes Act 1991 Amendment Act 2001.
2: In this Act, the Maori Purposes Act 1991 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Wi Pere Trust
1: Section 2 subsection (6)
6A: Despite subsection (5) subsection (7) or subsection (8)
a: the trustee is reappointed; or
b: a successor to the trustee is appointed.
2: Section 2(6A) subsection (1) |
DLM91232 | 2001 | Unit Trusts Amendment Act 2001 | 1: Title
1: This Act is the Unit Trusts Amendment Act 2001.
2: In this Act, the Unit Trusts Act 1960 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Accounts, etc, to be filed
Section 20
a: by omitting from subsection (2) of each unit trust, not being , in relation to each unit trust, that is not
b: by omitting from subsection (2A) of each unit trust , in relation to each unit trust |
DLM90171 | 2001 | Companies Act 1993 Amendment Act 2001 | 1: Title
1: This Act is the Companies Act 1993 Amendment Act 2001.
2: In this Act, the Companies Act 1993 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Rights and powers attaching to shares
Section 36(2) section 44 or section 107(2)
4: New
section 40 The principal Act is amended by repealing section 40
40: Contracts for issue of shares
A contract or deed under which a company is or may be required to issue shares, whether on the exercise of an option or on the conversion of securities or otherwise, is an illegal contract for the purposes of the Illegal Contracts Act 1970
a: the board is entitled to issue the shares; and
b: either—
i: the board has complied with section 47 or section 49
ii: all entitled persons agree or concur with the issue of the shares under section 107(2)
iii: the contract or deed expressly provides that the contract or deed is subject to—
A: the board complying with section 47 or section 49
B: all entitled persons agreeing to or concurring with the issue of the shares under section 107(2)
5: Transfer of shares under approved system
Section 85(1) paragraph (c)
c: either—
i: the Act or the constitution expressly permits the board to refuse or delay registration for the reasons stated; or
ii: any identification number assigned to the shares or issued to the holder of the shares under a system of transfer approved under section 7 of the Securities Transfer Act 1991
6: Share certificates
Section 95(2) of this section or subsection (5)
7: Unanimous assent to certain types of action
Section 107(1)(c) 58 59
8: Resolution in lieu of meeting
Section 122(3A) For the purposes of subsection (2) Any resolution in writing under this section
9: Meaning of director
Section 126(1) paragraphs (b) (c) and 301 of this Act 301, 383, and 385
10: Major transactions
Section 129(2A) paragraph paragraph (b)
11: Disclosure of interest
Section 140(2) or and, if the company has more than 1 director,
12: New
section 258A The principal Act is amended by inserting, after section 258
258A: Duty to notify suspected offences
1: A liquidator of a company who considers that an offence that is material to the liquidation has been committed by the company or any director of the company against this Act or any of the following Acts must report that fact to the Registrar:
a: the Companies Act 1955
b: the Crimes Act 1961
c: the Securities Act 1978
d: the Financial Reporting Act 1993
e: the Takeovers Act 1993
2: A report made under subsection (1)
3: A liquidator who fails to comply with subsection (1) section 373(2)
13: Power to obtain documents and information
Section 261 subsection (6)
6A: A person who fails to comply with a notice given under this section commits an offence and is liable on conviction to the penalty set out in section 373(3)
14: Penalty for failure to comply with Act
1: Section 373(2) paragraph (m)
ma: section 258A(2) .
2: Section 373(3) paragraphs (a) (b)
a: section 261(6A)
b: section 273(2)
c: section 274(2)
15: Registrar may prohibit persons from managing companies
Section 385 subsection (5)
5: The Registrar must not exercise the power conferred by subsection (3)
a: not less than 10 working days' notice of the fact that the Registrar intends to consider the exercise of it is given to the person; and
b: the Registrar considers any representations made by the person. |
DLM110979 | 2001 | Citizenship Amendment Act 2001 | 1: Title
1: This Act is the Citizenship Amendment Act 2001.
2: In this Act, the Citizenship Act 1987 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: New
section 26A The principal Act is amended by inserting, after section 26
26A: Disclosure of citizenship information to certain specified agencies for certain purposes
1: The purpose of this section is to authorise the disclosure of citizenship information to certain specified agencies for certain purposes.
2: The Secretary and the chief executive of a specified agency listed in the first column of Schedule 4
3: For the purposes of subsection (2) Passports Act 1992
4: An agreement entered into under subsection (2)
5: The Secretary may disclose citizenship information to the chief executive only in accordance with Schedule 4 subsection (2)
6: In this section,— citizenship information specified agency section 97 of the Privacy Act 1993
4: New
Schedule 4 The principal Act is amended by inserting, after Schedule 3 Schedule 4 |
DLM112106 | 2001 | Criminal Justice Amendment Act 2001 | 1: Title
1: This Act is the Criminal Justice Amendment Act 2001.
2: In this Act, the Criminal Justice Act 1985 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Determination of application for release to home detention
Section 103B subsection (6)
6A: The Board may revoke a direction that an offender be released to serve his or her sentence by way of home detention, at any time before the offender is released. |
DLM112759 | 2001 | Gas Amendment Act 2001 | 1: Title
1: This Act is the Gas Amendment Act 2001.
2: In this Act, the Gas Act 1992 the principal Act
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Application
Section 3(2) Nothing in this Act (other than sections 54(1)(n)(ii) and 55
4: Regulations
1: Section 54(2)(a) or any official standard
2: Section 54(2)(b) subparagraph (i)
ia: any official standard, or any part of an official standard; or .
3: Section 54 subsection (2)
2A: Regulations may require compliance with an official standard (or a specified part of an official standard) that relates to the subject matter of the regulations by referring to it in the regulations (with any additions or variations that may be specified in the regulations).
2B: That official standard (or the specified part), as it existed on the date of the inclusion (but with any specified additions or variations) is then deemed to form part of the regulations.
5: Regulations relating to information disclosure
1: Section 55(1)(c) which information shall include which information may include
2: Section 55(1) paragraph (g)
g: requiring, in respect of statements or information required from pipeline owners,—
i: the adoption, in the preparation or compilation of those statements or that information, of such methodology as is prescribed in the regulations or in any document published by or under the authority of the Secretary and referred to in the regulations:
ii: the disclosure, in the prescribed manner, of the methodology adopted in the preparation or compilation of those statements or that information:
iii: the inclusion of any matters prescribed in any document published by or under the authority of the Secretary and referred to in the regulations: .
3: Section 55 subsection (2)
2: The regulations may not require the disclosure of the names of the parties to, or the terms and conditions of, contracts made before 1 August 1990 but, if the contract is modified after that date, the regulations may require the disclosure of information as to the modification, the term or condition that has been modified (including its context), and the names (or characteristics) of the parties.
4: Section 55
4: References in this section to pipeline owners, gas wholesalers, gas retailers, and gas distributors include any person that is or was such a person for any part of a financial year. |
DLM112779 | 2001 | Juries Amendment Act 2001 | 1: Title
1: This Act is the Juries Amendment Act 2001.
2: In this Act, the Juries Act 1981 the principal Act
2: Commencement
This Act comes into force on 1 January 2002.
3: Jury districts
1: Section 5(3) subsection (4) subsections (3A) (4)
2: Section 5 subsection (3)
3A: The District Court jury district for Kaikohe includes all places within 45 kilometres by the most practicable route from the courthouse in Kaikohe.
3: Section 5(4) of this section , or subsection (3) (3A)
4: Section 5(4) paragraph (b)
b: No place included in a District Court jury district for a Court town is,—
i: in the case of Kaikohe, more than 45 kilometres by the most practicable route from the courthouse in Kaikohe; and
ii: in the case of any other Court town, more than 30 kilometres by the most practicable route from the courthouse in that town.
4: Judge may order removal of trial if no courtroom available
Section 16A subsection (3)
3: No person is required to attend for jury service at the new venue if that venue is outside the jury district and is,—
a: in the case of the District Court jury district for Kaikohe, more than 45 kilometres by the most practicable route from that person's place of residence; or
b: in the case of any other jury district, more than 30 kilometres by the most practicable route from that person's place of residence.
5: Transitional provisions
1: Nothing in this Act affects the validity of any jury list or jury panel that was prepared and in use immediately before the commencement of this Act.
2: Nothing in this Act affects the validity of the composition of any jury that was constituted before the commencement of this Act and continued to serve after that date.
3: Nothing in this Act affects the validity of the composition of any jury that was constituted after the commencement of this Act from a jury list that was prepared and in use immediately before the commencement of this Act.
4: Nothing in this Act affects the validity of a summons that was issued under the principal Act before the commencement of this Act, and is intended to continue to have effect after that date. |
DLM122998 | 2001 | Public Trust Act 2001 | 1: Title
This Act is the Public Trust Act 2001.
2: Commencement
1: This Act, except for section 167
2: The Order in Council, or a separate Order in Council, may fix a different date for the commencement of section 71
3: Section 167
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) brought into force 1 March 2002 clause 2 Public Trust Act Commencement Order 2002 Section 2(2) brought into force 1 July 2002 clause 2 Public Trust Commencement Order (No 2) 2002 Section 2(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Preliminary provisions
3: Purpose
The purpose of this Act is—
a: to establish Public Trust as a statutory corporation that is a Crown entity; and
b: to repeal and replace the Public Trust Office Act 1957
4: Interpretation
In this Act, unless the context otherwise requires,— administration
a: letters of administration of the estate of a deceased person, granted with or without the will annexed, for general, special, or limited purposes; and
b: in the case of Public Trust, an order to administer and an election to administer administrator
a: an executor before and after the probate has been granted; and
b: Public Trust, in any case where it is deemed to be an executor or administrator by reason of having filed an election to administer board section 14 chief executive common fund section 48 court Crown entity subsidiary the second column of section 7(1)(c) estate estate money fiduciary group investment fund section 63 instrument land Minister office solicitor owner portfolio investment entity Income Tax Act 2004 property Public Trust section 7 Crown entity related company section 2(3) subsidiary sections 5 7 8 trust
a: includes—
i: implied and constructive trusts; and
ii: cases where the trustee has a beneficial interest in the trust property; and
iii: the duties incidental to the office of a personal representative; but
b: does not include the duties incidental to an estate conveyed by way of mortgage;— and trustee 1957 No 36 s 2 Section 4 Crown entity subsidiary inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 4 Crown entity subsidiary amended 18 July 2013 section 42 Crown Entities Amendment Act 2013 Section 4 good employer repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 4 portfolio investment entity inserted 1 October 2007 section 229 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 Section 4 Public Trust amended 25 January 2005 section 200 Crown Entities Act 2004
5: Application of Act where Public Trust acts jointly
1: Except as provided in subsection (3) or otherwise specifically provided in this Act, the provisions of this Act, so far as they are capable of doing so and with any necessary modifications, extend and apply to any case in which Public Trust is acting jointly with another person, or is appointed or proposes to act jointly with another person.
2: Accordingly, in any such case,—
a: references in this Act to Public Trust include references to Public Trust and the person or persons with whom Public Trust is acting, or is appointed to act or proposes to act:
b: references in this Act to an estate administered by Public Trust extend to and include any estate in respect of which Public Trust is acting jointly with another person in any of the offices or positions mentioned in section 75(1)
3: However, subsection (1) does not extend or apply to—
a: sections 82 83
b: section 84
c: section 85
d: Part 7
e: section 130
4: Nor do the provisions of the Crown Entities Act 2004
a: Parts 2 to 4 sections 36(2) 60
b: section 91
c: section 118(e) and (i)
d: sections 122 to 125
e: section 129
f: section 137
5: Nothing in this section restricts the jurisdiction of any court in relation to the granting of administration or the making of any other order. 1957 No 36 s 43A Section 5(4) amended 25 January 2005 section 200 Crown Entities Act 2004
6: Relationship between this Act and other Acts and instruments
1: The provisions of the Trusts Act 2019 Administration Act 1969
a: so as not to affect any of the express provisions of this Act; and
b: as subordinate to the provisions of this Act.
2: All powers and authorities conferred by this Act on Public Trust—
a: are additional to any other powers and authorities Public Trust has under any enactment, instrument, or law; and
b: do not limit or restrict those other powers and authorities.
3: Except as otherwise expressly provided by this Act, the provisions of this Act are not restricted by any other enactment or law, and—
a: all rights, powers, and remedies conferred by any other enactment or law upon Public Trust or upon any court, Judge, or other person remain unrestricted; and
b: the rights, powers, and remedies conferred by this Act are in addition to and not in derogation of those other rights, powers, and remedies; and
c: the rights, powers, and remedies conferred by this Act, and those other rights, powers, and remedies, are capable of being exercised either independently or in aid of one another.
4: Section 100
a: invest any estate money, or invest the common fund, or invest any group investment fund; or
b: settle, or be or appoint a trustee of, a trust.
5: Subsection (4) does not limit subsection (3). 1957 No 36 s 139 Section 6(1) amended 30 January 2021 section 161 Trusts Act 2019 Section 6(4) added 25 January 2005 section 200 Crown Entities Act 2004 Section 6(5) added 25 January 2005 section 200 Crown Entities Act 2004
2: Establishment of Public Trust
7: Establishment of Public Trust
1: This section establishes Public Trust.
2: Section 7(2) repealed 25 January 2005 section 200 Crown Entities Act 2004
7A: Application of Crown Entities Act 2004
1: Public Trust is a Crown entity for the purposes of section 7
2: The Crown Entities Act 2004
3: Sections 28(1) 29 37 96 100 104 Part 4 responsible Minister the responsible Minister acting with the agreement of the Minister of Finance Section 7A inserted 25 January 2005 section 200 Crown Entities Act 2004
8: Functions of Public Trust
1: The principal functions of Public Trust are to—
a: develop, promote, conduct, or otherwise participate in the business of providing comprehensive estate management and administration services, including associated legal, financial, and other services; and
b: carry out, perform, or otherwise fulfill functions conferred on Public Trust by this Act or any other Act; and
c: carry out, perform, or otherwise fulfill other functions requested by the Minister, acting in agreement with the Minister of Finance, and agreed to by Public Trust; and
d: develop, promote, conduct, or otherwise participate in such other business as Public Trust determines with the approval of the Minister, acting in agreement with the Minister of Finance.
1A: For the avoidance of doubt, a request under section 8(1)(c) section 112
2: Any request by the Minister and agreement by Public Trust under subsection (1)(c), and any determination of Public Trust and approval of the Minister under subsection (1)(d), must be in writing.
3: As soon as practicable after any such request or determination is made and is agreed or approved, the Minister must—
a: publish a copy of the request or determination in the Gazette
b: present a copy of it to the House of Representatives. Section 8(1A) inserted 25 January 2005 section 200 Crown Entities Act 2004
9: Objectives of Public Trust
In fulfilling its functions, Public Trust is to have the principal objective of operating as an effective business, and, to this end,—
a: being as efficient as comparable businesses that are not owned by the Crown; and
b: prudently managing its assets and liabilities; and
c: maintaining financial viability in the long-term; and
d: being a good employer; and
e: being an organisation that exhibits a sense of social responsibility by having regard to the interests of the communities in which it operates.
10: Independence of Public Trust in its fiduciary functions
Despite anything in this Act or the Crown Entities Act 2004 Section 10 amended 25 January 2005 section 200 Crown Entities Act 2004
11: Powers
1:
2: Public Trust may exercise its capacity or any of its rights, powers, and privileges
a:
b: entering into any financial transaction or financial obligation intended to—
i: avoid or lessen any present or possible future risk to Public Trust's current or future income or assets; or
ii: lessen any liability of Public Trust; or
iii: avoid or lessen any possible future liability of Public Trust; or
iv: maximise Public Trust's current or future income (whether net or gross).
3: Subsection (2) does not limit sections 16 17 Section 11(1) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 11(2) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 11(2)(a) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 11(3) added 25 January 2005 section 200 Crown Entities Act 2004
12: Method of contracting
1: A contract or other enforceable obligation may be entered into by Public Trust as provided in section 127
2:
3:
4:
5: Section 12(1) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 12(2) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 12(3) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 12(4) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 12(5) repealed 1 January 2008 section 364(1) Property Law Act 2007
13: Application of Public Finance Act 1989
1:
2: For the purposes of the Public Finance Act 1989 Crown Entities Act 2004
3: Section 13 heading substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 13(1) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 13(2) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 13(3) repealed 25 January 2005 section 200 Crown Entities Act 2004 Board of Public Trust
14: Board of Public Trust
The board of the Public Trust must have no less than 5, and no more than 9, members. Section 14 substituted 25 January 2005 section 200 Crown Entities Act 2004
15: Board's management duty
Section 15 repealed 25 January 2005 section 200 Crown Entities Act 2004
16: Board's powers
Section 16 repealed 25 January 2005 section 200 Crown Entities Act 2004
17: Board may appoint committees
Section 17 repealed 25 January 2005 section 200 Crown Entities Act 2004 Delegations by board
18: Delegations generally
Sections 73(3) 97(g) Section 18 substituted 25 January 2005 section 200 Crown Entities Act 2004
19: Delegation of powers to make affidavits, etc
The powers of delegation conferred by section 73
a: make an affidavit, oath, or declaration required to be made by Public Trust under any rules of court or otherwise:
b: sign any document to be filed in any court, including any election to administer or any memorandum under Part 6
c: verify any account:
d: personally attend in any court. 1957 No 36 s 11(8) Section 19 amended 25 January 2005 section 200 Crown Entities Act 2004
20: Certain powers not to be delegated
Despite section 73
a:
b: the power to acquire or dispose of real property (otherwise than in relation to an estate):
c: the power to form and register a subsidiary (otherwise than in relation to an estate):
d: the power to borrow money (otherwise than in relation to an estate):
e: the power to appoint a chief executive. Section 20 amended 25 January 2005 section 200 Crown Entities Act 2004 Section 20(a) repealed 25 January 2005 section 200 Crown Entities Act 2004
21: Effect of delegation
Section 21 repealed 25 January 2005 section 200 Crown Entities Act 2004
22: Presumption of acting in accordance with delegation
Section 22 repealed 25 January 2005 section 200 Crown Entities Act 2004
23: Other matters relating to delegation
Section 23 repealed 25 January 2005 section 200 Crown Entities Act 2004
24: Execution of documents
Section 24 repealed 25 January 2005 section 200 Crown Entities Act 2004
25: Presumption of authority to execute document
Section 25 repealed 25 January 2005 section 200 Crown Entities Act 2004 Chief executive of Public Trust
26: Chief executive
1: The board must appoint a chief executive.
2: The chief executive must not be a member of the board.
3: Section 26(3) repealed 25 January 2005 section 200 Crown Entities Act 2004
27: Terms and conditions of employment of chief executive
Section 27 repealed 25 January 2005 section 200 Crown Entities Act 2004
28: Delegations by chief executive
Section 28 repealed 25 January 2005 section 200 Crown Entities Act 2004 Employees of Public Trust Heading repealed 25 January 2005 section 200 Crown Entities Act 2004
29: Personnel policy
Section 29 repealed 25 January 2005 section 200 Crown Entities Act 2004
30: Equal employment opportunities programme
Section 30 repealed 25 January 2005 section 200 Crown Entities Act 2004
31: Appointment of employees of Public Trust
Section 31 repealed 25 January 2005 section 200 Crown Entities Act 2004
32: Establishment of superannuation schemes
Section 32 repealed 25 January 2005 section 200 Crown Entities Act 2004
33: Employees not in service of the Crown
Section 33 repealed 25 January 2005 section 200 Crown Entities Act 2004 Declaration of fidelity and secrecy
34: Declaration of fidelity and secrecy
Every member of the board of Public Trust, every member of a committee
a: maintain and aid in maintaining the secrecy of all matters coming to his or her knowledge about the affairs of any estate under administration in Public Trust, or the affairs of any person concerned in such an estate, except—
i: as may be authorised by law; or
ii: for the purpose of assisting to carry out the powers and functions of Public Trust, and the member's or employee's own proper duties:
b: make and subscribe the prescribed declaration of fidelity and secrecy. 1957 No 36 s 17 Section 34 amended 25 January 2005 section 200 Crown Entities Act 2004
3: Financial provisions
General provisions
35: Funds of Public Trust
The funds of Public Trust consist of—
a: all money appropriated by Parliament and paid to Public Trust; and
b: all other money lawfully received by Public Trust for its purposes (not being money received or held by Public Trust in its fiduciary capacity); and
c: all accumulations of income derived from the money referred to in paragraphs (a) and (b).
36: Public Trust bank accounts
1: Section 158 section 35
2: In addition to any bank account opened under section 158
a: Public Trust; or
b: the estate; or
c: any beneficiary or beneficiaries of the estate.
2A: For the avoidance of doubt, section 158
3: All money received by Public Trust, or for Public Trust by any member or by any employee of Public Trust, must be paid, as Public Trust determines, into a bank account opened, maintained and operated under section 158(1)
3A: Subsection (3) applies despite section 158
4: Public Trust must authorise the manner in which money is withdrawn or paid from any bank account opened, maintained, or operated under Section 36(1) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 36(2) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 36(2A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 36(3) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 36(3A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 36(4) amended 25 January 2005 section 200 Crown Entities Act 2004
37: Investment of funds
Any funds of Public Trust not immediately required must be invested in 1 or more of the forms of investment provided for in section 47
38: Public Trust not to borrow without consent of Minister of Finance
1:
2: Nothing in this section applies to—
a: a transaction of the kind referred to in subsection (1) undertaken or to be undertaken by Public Trust in relation to an estate; or
b: the investment of money in the common fund under Part 4
3: This section applies despite section 17 Section 38(1) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 38(3) added 25 January 2005 section 200 Crown Entities Act 2004
39: Audit Office to be auditor of Public Trust
Section 39 repealed 25 January 2005 section 200 Crown Entities Act 2004
40: Annual report
Section 40 repealed 25 January 2005 section 200 Crown Entities Act 2004 Public Trust and the Crown
41: Ownership interest of the Crown
1: For the avoidance of doubt, it is declared that Public Trust is owned by the Crown.
2: If at any time Public Trust is liquidated, the Crown is entitled to receive the net assets available in the liquidation.
42: Deficiency payable out of Crown Bank Account
1: If at any time the funds of Public Trust are insufficient to meet its liabilities and commitments, the Minister of Finance may, without further appropriation than this section, advance out of a Crown Bank Account
2: Advances under subsection (1) must be repaid as soon as the funds of Public Trust are sufficient for the repayment. Section 42(1) amended 25 January 2005 section 65R(3) Public Finance Act 1989
43: Distributions to the Crown
1: In any financial year in which Public Trust makes a profit, it may, and if so directed by the Minister of Finance must, distribute to the Crown an amount equal to the whole or any part of that profit.
2: If the Minister of Finance is satisfied after consulting the board that any part of the funds of Public Trust is surplus to its present or reasonably foreseeable needs, the Minister may—
a: direct that an amount equal to that part of those funds be distributed to the Crown; and
b: the board must comply with that direction.
3: The Minister of Finance must obtain the agreement of the Minister before giving a direction under subsection (1) or subsection (2).
44: Payment by the Crown for non-commercial activities
1: If, in respect of any financial year the Minister requests Public Trust to provide goods or services to any person, the Minister must enter into an agreement with Public Trust specifying the terms and conditions, including any payment to Public Trust by the Crown, on which those goods and services are to be provided.
2: The Minister may not enter into an agreement under subsection (1) without the agreement of the Minister of Finance.
3: Payments by the Crown to Public Trust pursuant to an agreement under subsection (1) must be made out of money appropriated by Parliament for the purpose.
4: Public Trust may include an agreement under subsection (1) in a statement of performance expectations prepared for the purpose of section 149C Section 44(4) replaced 1 July 2014 section 72 Crown Entities Amendment Act 2013
45: Power to request information
Section 45 repealed 25 January 2005 section 200 Crown Entities Act 2004
46: Refusal of request to supply information
1: A request for information must be refused if the information is held by Public Trust in a fiduciary capacity.
2: Subsection (1) does not limit section 134
3: Subsection (1) applies despite any other enactment or law. Section 46 substituted 25 January 2005 section 200 Crown Entities Act 2004
4: Investments
47: Investments generally
Public Trust is to invest all capital money and estate money held by it in 1 or more of the following forms of investment in accordance with this Part:
a: the common fund of Public Trust, as provided in section 48
b: separate investments on account of the estate, as provided in section 59
c: special investments on account of the estate, as provided in section 60
d: a group investment fund established by Public Trust, as provided in section 61 Common fund of Public Trust
48: Common fund
1: All amounts of capital money held by Public Trust, whether directed to be invested or not, are to constitute one common fund, except to the extent that—
a: their investment in the common fund is expressly forbidden; or
b: Public Trust, in its discretion, determines to invest an amount—
i: on separate account of an estate in accordance with section 59
ii: in a group investment fund in accordance with section 61
c: Public Trust places or retains an amount in a separate bank account operated in connection with an estate in accordance with section 36(2)
2: The common fund is to be invested in the manner provided by section 49
3: Investments made from the common fund are not made on account of, and do not belong to, any particular estate.
4: For the purposes of subsection (1)(a), a power or direction to invest money in 1 or some only of any specified investments or classes of investments is not to be treated as an express prohibition against investment in the common fund, unless there is an express direction to the contrary.
5: Nothing in this section prevents Public Trust from applying money belonging to an estate constituting part of the common fund for any purpose involved in the exercise of any power or authority conferred on Public Trust by or under—
a: this or any other enactment; or
b: any will, deed, court order, or other instrument. 1957 No 36 ss 20, 30(1), (2), (3)
49: Investment of common fund
Money in the common fund must be invested in accordance with the Trusts Act 2019 1957 No 36 s 32(1), (4) Section 49 amended 30 January 2021 section 161 Trusts Act 2019
50: Interest payable to estates in common fund
1: The interest payable to estates whose money constitutes the common fund is to be paid at a rate and at intervals determined by Public Trust and notified in the Gazette
2: Public Trust may fix and notify different rates and intervals with respect to different classes of deposit, whether according to the type of estate making the deposit or the amount or period of the deposit.
3: In any particular case or class of case, Public Trust may nevertheless pay the interest at such intervals different from those specified in the notice as may be necessary or appropriate in the interests of administrative convenience or for other good reason.
4: Public Trust may also determine and notify in the Gazette
a: types of deposit that do not carry interest:
b: the dates or times, or criteria for determining the dates or times, when interest starts or stops.
5: The notification of any interest rate or other matter in the Gazette 1957 No 36 ss 30(4), (5), 37(2), (3)
51: Public Trust acting under section 75 as agent to invest in common fund
1: The power given to Public Trust by section 75
2: Any such investment is to be for such period and on such terms and conditions as are agreed on between Public Trust and the principal.
3: Despite anything in section 50 1957 No 36 s 37(1)
52: Deficiency in common fund to be made good out of public money
1: If the common fund is insufficient to meet the lawful claims on it, the Minister of Finance must, without further appropriation than this section, pay out of a Crown Bank Account
2: All money paid by the Minister of Finance under the authority of this section constitutes a debt due by Public Trust to the Crown, and is recoverable accordingly. 1957 No 36 s 36 Section 52(1) amended 25 January 2005 section 65R(3) Public Finance Act 1989
53: Power to deal with land investments
All land that constitutes an investment of the common fund, together with its buildings and improvements, may be managed, leased, let, mortgaged, exchanged, sold, or otherwise dealt with or disposed of by Public Trust as it thinks fit. 1957 No 36 s 32(4)
54: Public Trust may apply common fund money for purpose of buying in securities
1: If any power of sale conferred upon Public Trust as mortgagee or lender in respect of any mortgage or other security securing common fund money is exercised or becomes exercisable, Public Trust may—
a: buy in, purchase, or otherwise acquire the land or other property affected by the mortgage or security, whether on a sale through the Registrar of the High Court or otherwise; and
b: expend or apply money of the common fund for that purpose.
2: Any land or property so acquired—
a: may be managed, stocked, cultivated, leased, exchanged, sold, or otherwise disposed of by Public Trust as it thinks fit; and
b: until sold, realised, or otherwise disposed of, constitutes an investment of the common fund for the purpose of securing repayment of the common fund money expended or applied for its acquisition. 1957 No 36 s 34
55: Extensions or renewals of common fund investments
1: Where Public Trust is the mortgagee or lender in the case of a mortgage or other security that secures common fund money, Public Trust may at any time arrange with the mortgagor or borrower for an extension or renewal of the mortgage or security.
2: The extension or renewal may be for such term and subject to such conditions and at such rate of interest (whether higher or lower than that previously payable) as Public Trust thinks fit, even though—
a: a higher rate of interest might be obtainable for a new loan; or
b: by reason of any decrease in the value of the property concerned, or for any other reason, the extension or renewal is not an investment that Public Trust could properly make in respect of common fund money. 1957 No 36 s 42
56: Advances to estates from common fund
1: Public Trust may advance to an estate administered by it such sums out of the common fund as may be necessary to meet payment of the following amounts, if there is insufficient money available in the estate for the purpose:
a: expenses properly incurred by Public Trust in the administration of the estate:
b: money required or desired to be paid out of or on account of the estate, whether to persons entitled to the estate or any share or interest in it, or to creditors or otherwise:
c: money required or needed to carry into full effect any power or discretion vested in Public Trust, by this Act or otherwise, that Public Trust is required or has decided to exercise.
2: The total of all such advances to an estate may not exceed the value of the real and personal property in the estate, as estimated by Public Trust.
3: The sums advanced bear interest at a rate fixed from time to time by Public Trust.
4: The sums advanced, and any interest payable on those sums, constitutes a charge on the real and personal property comprised in the estate. The charge ranks next in priority to any mortgage or charge registered against or secured on the property that Public Trust has notice of at the time of making the advance.
5: Public Trust may also under subsection (1) make advances from the common fund to an estate managed or controlled by it as agent or attorney, and this section applies accordingly, except that the charge under subsection (4) is upon the following property without need to execute any mortgage, charge, or assignment:
a: if the power of attorney or other instruction of the person creating the agency is restricted to apply only to certain real and personal property of the person, upon all the property of the person to which the power of attorney or other instruction can relate, and the proceeds of the property:
b: if the power of attorney or other instruction is not so restricted, upon the whole of the persons real and personal property, and the proceeds of the property. 1957 No 36 s 39
57: Advances to beneficiaries from common fund
1: Public Trust may make advances out of the common fund to a person entitled to a share in an estate administered by Public Trust if—
a: the person so requests; and
b: the share is indefeasibly vested in interest and is not subject to any contingency.
2: The advances may not exceed two-thirds of the value of the share as estimated by Public Trust.
3: The sums advanced bear interest at a rate fixed from time to time by Public Trust.
4: Where an advance is made to a person under this section,—
a: the money advanced and any interest payable on that money is, by force of this Act and without any instrument of assignment, to be treated as a first charge on the share against which the advance is made; and
b: the money advanced, together with all interest, costs, charges, and expenses due in relation to the advance, is, in the absence of express agreement, repayable on demand, and may be recovered from the person in any court of competent jurisdiction; and
c: Public Trust may at any time, without notice, sell, mortgage, charge, or otherwise deal with the share against which the advances are made, for the purpose of obtaining repayment of the money advanced and all associated interest, costs, charges, and expenses that have accrued.
5: If a person is beneficially entitled to a share in more than 1 estate administered by Public Trust, Public Trust may exercise the powers conferred by subsection (4)(b) in respect of the person's share or interest in all or any of the estates.
6: A certificate by Public Trust as to the following matters is sufficient evidence of the facts stated until the contrary is proved:
a: the person to whom the advances were made under this section:
b: the amount owing for advances and interest on any specified date:
c: the share against which the advances were made. 1957 No 36 s 40
58: Person acting jointly with Public Trust
Nothing in this Act confers on any person acting jointly with Public Trust any right, power, or authority over or in respect of the management, administration, control, or investment of the common fund. 1957 No 36 s 30(1A) Investments otherwise than in common fund
59: Separate investments of estate money
1: Public Trust may, at its discretion, separately invest any estate money on account of the estate in accordance with the Trusts Act 2019
2: Subsection (1) does not authorise an investment if the making of that investment, or an investment of that class, is expressly forbidden by—
a: the instrument creating the trust; or
b: the authority of Public Trust to administer, hold, or control the estate.
3: If Public Trust is acting as a co-trustee, the exercise of its discretion under subsection (1) is subject to the consent of every other co-trustee of the estate who, at the time the investment is made,—
a: is acting in the trusts of that estate; and
b: is neither subject to a property order made under section 30 31 section 32 33
4: Amounts invested under this section are not part of the common fund, but nothing in this section prevents them from being reinvested in the common fund at a later time. 1957 No 36 s 30A(1), (2), (4) Section 59(1) amended 30 January 2021 section 161 Trusts Act 2019 Section 59(3)(b) substituted 10 September 2008 section 14(2) Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008
60: Special investments
1: This section applies to money that is available for investment but, by virtue of an express prohibition, may not form part of the common fund.
2: Public Trust must invest such money—
a: in accordance with any powers or directions as to its investment contained in the instrument (if any) governing the trust; or
b: to the extent that it is applicable, in accordance with the Trusts Act 2019
3: Immediately upon receipt of such money, Public Trust must make all reasonable efforts to invest it in accordance with subsection (2).
4: If the whole of the money cannot be so invested within 1 calendar month of its receipt, then, despite subsection (2) and the express prohibition, Public Trust may temporarily place the money in the common fund pending its investment elsewhere. 1957 No 36 s 31(1), (3), (4) Section 60(2)(b) amended 30 January 2021 section 161 Trusts Act 2019
61: Investments in group investment funds
1: Public Trust may, in its discretion, invest money of the following kinds in a group investment fund established by it under this Part (or under Part 2A of the Public Trust Office Act 1957
a: where authorised by the power of attorney or other written authority by which it is appointed as agent by any person, money held by Public Trust for that person:
b: money of any other estate in Public Trust's possession that is available for investment (whether or not the estate is administered by Public Trust), if—
i: the money is not directed to be invested in some other specified manner; and
ii: investment in a group investment fund is not inconsistent with the terms of the trust instrument or other authority governing the money.
2: If money of the kinds referred to in subsection (1) is lawfully invested in an investment in which a group investment fund may be invested, Public Trust may—
a: transfer the investment to the group investment fund; and
b: give credit in the group investment fund to the estate for the fair market value of the investment at the time of the transfer. On any investment being so transferred, it ceases to belong to the estate that formerly owned it.
3: Public Trust may in its discretion withdraw any amount for the time being to the credit of an estate in a group investment fund—
a: for the purpose of investing the amount on the separate account of the estate, or in another group investment fund, or in the common fund; or
b: for any other purpose relating to the exercise and discharge of its duties, powers, authorities, and functions.
4: If Public Trust is acting as a co-trustee in any case, the exercise of its discretion under subsection (1) or subsection (3) is subject to the consent of every other co-trustee of the estate who, at the time the investment is made,—
a: is acting in the trusts of that estate; and
b: is neither subject to a property order made under section 30 31 section 32 33 1957 No 36 s 42A(3), (4), (5), (6), (8) Section 61(4)(b) substituted 10 September 2008 section 14(3) Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008
62: Investments outside common fund not guaranteed
1: Investments made under any of sections 59 to 61 section 52 section 60(4)
2: Any loss or deficiency in relation to those investments is to be borne by the estate to which the investments, or money received from or arising from a realisation of the investments, belong or would belong if received or realised. Group investment funds
63: Public Trust may establish group investment funds
1: Public Trust may establish and keep 1 or more group investment funds.
2: Group investment funds are to be kept separately from the common fund.
3: Each group investment fund must be given an appropriate distinguishing name or number. 1957 No 36 s 42A(1)
64: Investment of group investment funds
1: Public Trust must invest the funds of a group investment fund in accordance with the terms of the instrument (if any) creating the trust under which the money is held and the Trusts Act 2019
2: Any profit or loss upon the realisation of any investment in a group investment fund is to be credited or debited to the group investment fund.
3: Investments from a group investment fund are not to be made on account of or belong to any particular estate, but Public Trust must keep an account showing at all times the entitlement of each estate in the fund. 1957 No 36 s 42A(2), (7), (10) Section 64(1) replaced 30 January 2021 section 161 Trusts Act 2019
65: Income and capital of group investment fund
Public Trust must, in respect of every group investment fund,—
a: pay or allocate the income from that fund proportionately to or among the estates entitled to the amounts invested in the fund according to the amounts of their several interests in the fund and the period for which they remain invested in the fund:
b: hold the capital of the fund proportionately for the estates entitled to the amounts invested in the fund according to the amounts of their several interests in the fund. 1957 No 36 s 42B
66: Periodic capital valuation of investments of fund
1: At least once in every month Public Trust must determine the capital value of the investments and funds comprising each group investment fund.
2: For the purposes of any such determination, Public Trust may accept as conclusive evidence of the value of any security listed on a stock exchange—
a: a quotation published in respect of similar securities by a stock exchange—
i: on the day the determination is made; or
ii: if there is no such quotation on that day, at any time in the preceding 7 days; or
b: the market value of the security at the day of the determination as determined by a person authorised to undertake trading activities on
3: In the case of securities valued under subsection (2)(a) that have a fixed or optional maturity date and a fixed annual interest or dividend payment, Public Trust must determine the capital value of the security by making such adjustment as it thinks proper in respect of accrued interest.
4: Subsection (1) is subject to section 67
5: In this section, stock exchange section 2(1) 1957 No 36 s 42C(1), (2), (5) Section 66(2)(b) amended 1 December 2002 section 30 Securities Markets Amendment Act 2002 Section 66(5) inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
67: Capital valuation of fund comprising investments in real estate
1: Where the investments comprising a group investment fund consist principally of investments in real property, Public Trust must determine at intervals not exceeding 6 months the capital value of the investments and funds of that fund.
2: Where reasonable grounds exist for believing that the capital value of any investment in the fund has or may have altered significantly, Public Trust must forthwith determine the capital value of that investment and redetermine the capital value of the fund accordingly. 1957 No 36 s 42CA(1), (2)
68: Timing of investments and withdrawals
1: An investment in or withdrawal from a group investment fund may be made only—
a: on a date at which the capital value of the investments and funds of the fund is determined under section 66 section 67
b: on the basis of the valuation made as at that determination date.
2: On a withdrawal from a group investment fund, income is to be allowed in accordance with section 65(a) 1957 No 36 ss 42C(3), (4), 42CA(3), (4)
69: Withdrawal of amounts from fund
If an amount is withdrawn from a group investment fund,—
a: that amount may, in the discretion of Public Trust, be paid or provided in cash or rateably in investments, or partly in cash and partly rateably in investments; and
b: as from the date of its withdrawal, no person has any claim on the fund in respect of the amount, whether for interest or otherwise. 1957 No 36 s 42A(9)
70: Reimbursement of expenses
1: Public Trust may reimburse itself out of a group investment fund for all reasonable expenses incurred by it in the management or administration of the fund.
2: Public Trust must make such initial disclosure and ongoing disclosure of any reimbursement of expenses as is prescribed by regulations made under this Act. 1957 No 36 s 42D(a)
71: Management fees
1: Subject to subsection (2), Public Trust may charge, demand, receive, or retain a reasonable fee or other remuneration for services rendered by it in the management or administration of a group investment fund (a management fee
2: Public Trust may charge, demand, receive, or retain a management fee in respect of any estate money invested in a group investment fund only if—
a: it makes initial disclosure to persons with a present interest in that money in accordance with regulations made under this Act; or
b: regulations made under this Act dispense with the requirement for initial disclosure; or
ba: a product disclosure statement in relation to the investment of that money in the fund has been lodged in accordance with the requirements of Part 3
c: an investment statement in relation to the investment of that money in the fund has been issued in accordance with the requirements of sections 33 37A
3: Public Trust must make ongoing disclosure of any management fee charged or retained in accordance with regulations made under this Act.
4: The ongoing disclosure must be made at the time of the issue by Public Trust of the financial statements of the estate in question, or at such other time as may be prescribed by regulations. 1957 No 36 s 42D Section 71(2)(ba) inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
72: Powers of Public Trust in respect of group investment funds
Except as otherwise provided in section 61 sections 63 to 70
a: all the powers that it could exercise if the investments and funds were not part of a group investment fund; and
b: any further powers that may be conferred on Public Trust by a court, being powers that could be conferred on Public Trust by a court if the investments and funds were not part of a group investment fund. 1957 No 36 s 42E
72B: Powers to adjust interest in trust property of fund that is portfolio investment entity
Where any investments and funds comprising a group investment fund are employed in an activity that Public Trust is empowered or authorised to carry on as a portfolio investment entity, Public Trust may adjust the interests of the beneficiaries in the investments and funds in the way required by section HL 7 Section 72B inserted 1 October 2007 section 230 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006
72C: Public Trust may not make regulated offer of managed investment products in certain group investment funds
1: Public Trust may not make a regulated offer of managed investment products in a group investment fund established by it under this Part if the fund was established after the date on which this section comes into force.
2: Nothing in subsection (1) affects the rights, powers, and duties of Public Trust under sections 61 to 72B
3: In this section, regulated offer managed investment products section 6(1) Section 72C inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
73: Examination of group investment funds
1: A solicitor or an accountant authorised in writing by an interested person is entitled to examine at any reasonable time the accounts, books, and vouchers of the group investment fund that relate to—
a: the investments and funds comprising the group investment fund; and
b: the income of the fund; and
c: the expenses and management fees payable out of the fund; and
d: the proportion to which the person who required the examination, or the estate in which the person is a beneficiary, is entitled.
2: In this section, interested person
a: an entitlement in the group investment fund; or
b: an interest in an estate that has an entitlement in the fund. 1956 No 61 s 83A s 73 Section 73 replaced 30 January 2021 section 161 Trusts Act 2019
74: Duties, etc, of Public Trust not affected by sections 63 to 73
Except as otherwise expressly provided in sections 63 to 73 1957 No 36 s 42G
5: Acquisition of right to administer estates
75: Duties for which Public Trust may be appointed
1: A person or entity may appoint Public Trust for the purpose in any situation where the person or entity can—
a: appoint an executor, administrator, trustee, guardian, committee, manager, agent, attorney, or liquidator, or make any other appointment of a fiduciary nature; or
b: create a trust and appoint a trustee for the purposes of the trust.
2: Without limiting the generality of subsection (1), Public Trust may, if it consents, be appointed—
a: to be a guardian of an infant under any law relating to the guardianship and custody of infants, whether by deed or will or by an order of a court made on the application of Public Trust or another person:
b: as next friend or as guardian ad litem
c: to act as agent for the purpose of resealing in New Zealand any probate or letters of administration (within the meaning of Part 2
d: as a receiver, whether under the Receiverships Act 1993
e: as arbitrator for any dispute to which the Arbitration Act 1996
f: to represent any party in any proceedings, or any person or class of persons interested in the proceedings, on the appointment or direction of a court.
3: An appointment of a kind referred to in this section may be made of Public Trust either—
a: alone; or
b: jointly with another person, if Public Trust consents.
4: If Public Trust is acting jointly, sections 5 90
5: For the purposes of subsection (1), person or entity 1957 No 36 ss 43(1), 54, 55, 56(1), 57(1)
76: Appointment of Public Trust by executors, administrators, and trustees
1: An executor may, with the consent of the High Court, and if not expressly prohibited,—
a: appoint Public Trust as sole executor; or
b: appoint as co-executors Public Trust and any other person or persons (whether or not including the executor making the appointment). Such an appointment may be made either before or after taking out probate.
2: Any other administrator under a grant of administration with or without a will annexed may, with the consent of the High Court, and if not expressly prohibited,—
a: appoint Public Trust as sole administrator; or
b: appoint as co-administrators Public Trust and any other person or persons (whether or not including the person making the appointment).
3: An appointment under subsection (1) or subsection (2) is subject to the approval of the appointee or appointees.
4: Where an appointment is made under subsection (1) or subsection (2) by an executor or by an administrator with a will annexed, Public Trust and any other person appointed are also, by virtue of the appointment, the sole trustee or co-trustees (as appropriate) in all cases where—
a: the executor or administrator was trustee; or
b: there was no trustee appointed by the trust instrument; or
c: there was no trustee in existence at the date of the appointment under this section.
5: In any case where there is more than 1 executor, administrator, trustee, or person having power to appoint a trustee, any one of those persons may, with the consent of the proposed appointee or appointees, apply to the High Court—
a: to have Public Trust appointed as sole executor, administrator, or trustee; or
b: to have appointed as co-executors, co-administrators, or co-trustees both Public Trust and any other person or persons (whether or not including all or any of the executors, administrators, trustees, or persons having power to appoint a trustee).
6: The High Court may make any order it thinks fit on an application under subsection (5). 1957 No 36 s 44
77: Public Trust entitled on application to administration of intestate estates
1: Public Trust may, if it thinks fit, apply to obtain a grant of administration of the estate of a person who, wherever domiciled,—
a: dies intestate, whether in New Zealand or elsewhere; and
b: leaves property situated in New Zealand.
2: Public Trust is then entitled as of right to the grant of administration, unless—
a: the grant of administration is applied for by some other person in New Zealand who would be entitled to the grant of administration were it not for this section; and
b: the court grants administration to that person.
3: Public Trust need not give notice of an application under subsection (1) to a person who would otherwise be entitled to the grant of administration, and the court may not require Public Trust to do so. 1957 No 36 s 45
78: Public Trust may be appointed sole trustee where appointment of 2 or more trustees provided for
1: Unless expressly prohibited, Public Trust may be appointed, and may accordingly act, as sole trustee under any will, codicil, deed, or other instrument, even where the will, codicil, deed, or other instrument provides for or directs the appointment of 2 or more trustees.
2: Such an appointment of Public Trust may be made by the trustees appointed under the will, codicil, deed, or other instrument, or by any other person having power to appoint new trustees, without obtaining the consent of the High Court.
3: In this section, trustees 1957 No 36 s 46
79: Judge may consent to Public Trust's appointment if person whose consent required refuses or unable to consent
If the consent of any person is required for the appointment of an administrator or other trustee, Public Trust may nevertheless be appointed without that consent, but instead with the consent of a Judge of the High Court, in any case where the person whose consent is required—
a: refuses to consent; or
b: is absent from New Zealand; or
c: is not of full age or is incapable of consenting to the appointment of an administrator or other trustee. 1957 No 36 s 47
80: Power of Public Trust to administer if no application for probate or administration
1: Public Trust may apply for an order to administer with the will annexed in any case where—
a: a person dies testate; and
b: application for probate or letters of administration with the will annexed is not made in New Zealand within 3 months after the date of the person's death.
2: The court must make the grant applied for, unless the person entitled to probate or letters of administration with the will annexed either—
a: applies for probate or letters of administration with the will annexed; or
b: satisfies the court that the delay in making the application has been and still is unavoidable or accidental.
3: The court may nevertheless, on application of the person or his or her attorney, grant probate or letters of administration to—
a: a person entitled to probate or letters of administration with the will annexed who—
i: was out of New Zealand when the grant to Public Trust was made; and
ii: has not renounced or refused probate or letters of administration; or
b: the attorney of such a person. The grant may be in such manner and subject to such limitations or conditions as the court thinks proper.
4: An application under subsection (3) may be made only if at least 14 days' notice in writing of the intention to apply has been left at the office of Public Trust at Wellington.
5: Immediately on the grant to a person of any probate or letters of administration under subsection (3),—
a: all the functions, powers, authorities, discretions, rights, and duties of Public Trust in relation to the testator's estate (except the rights reserved by this subsection) pass to the person; and
b: all liability of Public Trust under any contract entered into by it, or otherwise, affecting or relating to the estate, passes to the person, and no claim then lies against Public Trust in respect of that liability; and
c: so much of the estate as is then unadministered by Public Trust vests in the person, once Public Trust has been allowed or paid—
i: all money due for commission or other remuneration, necessary outlay, disbursements, costs, charges, and expenses affecting the estate; and
ii: Public Trust's costs of and incidental to the application for probate or letters of administration.
6: No costs may be awarded against Public Trust on an application under subsection (1). 1957 No 36 s 51
81: Trustees may delegate powers to Public Trust
1: Trustees of a trust estate who are empowered to delegate all or any of their functions, powers, authorities, discretions, and rights to any person may delegate them to Public Trust, if Public Trust consents.
2: Public Trust may then exercise all the functions, powers, authorities, discretions, and rights that were delegated. 1957 No 36 s 60(1)
82: Powers and authorities exercisable by Public Trust pending grant of probate or administration
1: Where a person has died, Public Trust may if it thinks fit, until administration is granted, exercise with respect to the estate of the deceased person all the powers and authorities, and do all the acts and things, that it could exercise or do if—
a: the person had died intestate; and
b: Public Trust had obtained administration. Before Public Trust so acts, however, it must give notice in accordance with section 83
2: Subsection (1) applies—
a: whether the person died testate or intestate; and
b: even if some person other than Public Trust is appointed executor or is entitled to letters of administration.
3: Subsection (1) does not authorise Public Trust to sell, lease, exchange, mortgage, or partition any portion of the property (other than property to which subsection (4) applies) unless, on application of Public Trust, a Judge of the High Court makes an order under this section authorising the relevant action.
4: Public Trust may nevertheless sell, without obtaining such an order, any portion of the personal estate that is—
a: of a perishable nature; or
b: liable to deteriorate; or
c: for any other reason liable to decrease unduly in value if retained. The decision of Public Trust as to whether any portion of the personal estate is of such a nature is conclusive and binding on all persons.
5: All costs, charges, and expenses incurred by Public Trust under this section are a first charge on the property of the deceased person.
6: A person who afterwards applies for administration of the estate of the deceased person must first pay any costs, charges, commissions, and expenses incurred by or payable to Public Trust before administration can be granted.
7: In acting under this section, Public Trust is not to be treated, and is not liable, as an executor de son tort 1957 No 36 s 61
83: Notice of exercise of powers and authorities under section 82 to person entitled to probate or administration
1: Before acting under section 82
2: Public Trust may then proceed to exercise all or any of its powers and authorities under section 82
a: the person does not, within 21 days after the notice was posted or otherwise sent, give notice in writing to Public Trust at its Wellington office that the person intends to apply for administration; or
b: the person gives such notice, but then either—
i: fails to apply for administration within the 14 days following the giving of the notice; or
ii: makes the application within 14 days, but the application fails.
3: If more than 1 person is entitled to take out administration, it is sufficient for Public Trust to give notice to 1 of those persons only.
4: Nothing in this section prevents Public Trust from exercising its powers and authorities under section 82
a: it is not actually known to Public Trust that there is in New Zealand any person entitled to obtain administration; or
b: Public Trust considers in its discretion that there is any emergency situation that requires it to act without giving notice. 1957 No 36 s 62
84: Public Trust may oppose application for administration
1: Public Trust may lodge a caveat under section 60 ex parte
a: a person other than Public Trust has made application for administration of the estate of a deceased person who has left real or personal property situated in New Zealand; and
b: Public Trust believes that—
i: there are substantial and reasonable grounds for opposing the grant; but
ii: there is no person in New Zealand beneficially interested in opposing the grant who is of full age and capable of acting as administrator.
2: On receiving the application for directions, the Judge may, if he or she thinks fit, direct Public Trust to represent the persons who may be prejudicially affected by the grant and oppose the grant on their behalf.
3: All costs, charges, and expenses incurred by Public Trust in acting under such a direction are to be paid out of the estate. 1957 No 36 s 63
85: Payment of legacies of infants to Public Trust
1: With the consent of Public Trust, any trustee may—
a: pay to Public Trust any money being the whole amount or the whole remaining amount of any legacy or share in an estate to which an infant is entitled, whether indefeasibly or contingently, under a will, instrument, trust, or intestacy; and
b: in writing in a form approved by Public Trust, direct Public Trust to account for the money according to the provisions of the will, instrument, trust, or intestacy.
2: The written direction must declare the following matters:
a: that the amount stated is the whole amount, or, if appropriate, the whole remaining amount, to which the infant is entitled:
b: how much of the amount is capital and how much is income:
c: how much, if any, of the capital and income has been expended, whether for the maintenance, education, advancement, or benefit of the infant or otherwise:
d: in the case of money to which the infant is contingently entitled,—
i: the person or persons who will become entitled to the money, or so much of it as remains, in the event of the infant failing to become indefeasibly entitled; and
ii: the shares and interests of those persons:
e: such other matters as Public Trust may require.
3: The trustee giving the written direction to Public Trust must—
a: certify it as correct; and
b: where applicable, furnish along with it a true copy of the will or trust instrument affecting the legacy or share.
4: Public Trust must act in accordance with the trusts in the will or instrument (if any) referred to in subsection (3)(b), but—
a: is not under any obligation to inquire into the accuracy of the trustee's certificate; and
b: does not incur any liability through acting upon any declaration contained in the certified written direction.
5: A certified written direction made in accordance with this section vests in Public Trust all the powers of the trustee in respect of the legacy or share, whether conferred by will, trust instrument, or statute, or in any other manner.
6: In addition to the powers vested in it by subsection (5), Public Trust may exercise in respect of the legacy or share any power conferred on Public Trust by this Act. 1957 No 36 s 65
86: Administration of benefit funds by Public Trust
1: A fund that is raised by public or private subscriptions for the benefit or relief of any person or class of persons may be placed with Public Trust to be administered by Public Trust and invested in the common fund.
2: The following provisions apply to such a fund:
a: Public Trust may recognise as a committee any persons whom it believes—
i: to have organised the appeal for the subscriptions; or
ii: to have been appointed, authorised, or recognised as a committee by a substantial number of the subscribers:
b: after conferring with the committee (if any), Public Trust may apply to the High Court for directions as to the administration of the fund, and for that purpose must submit a scheme of administration:
c: the court may approve the scheme with or without modification as it thinks fit:
d: Public Trust must administer the fund in accordance with the scheme as approved:
e: on the application of the Attorney-General, Public Trust, a member of the committee, or person claiming an interest in the fund, the court may at any time—
i: vary the scheme so far as it relates to the powers of Public Trust in respect of the fund and the mode of administering the fund:
ii: give directions on any point or question relating to the scheme or the fund:
f: Public Trust must obey all such directions:
g: if the fund was raised for the benefit of 2 or more persons, a scheme under this section may provide that the income and capital of the fund, or of any specified part of the fund, may be applied by Public Trust in its discretion for or towards the maintenance or education (including past maintenance or education) or advancement or benefit of—
i: all those persons; or
ii: any 1 or more of them to the exclusion of the others,— in such shares and proportions and generally in such manner as Public Trust thinks fit. Public Trust may apply money in accordance with such provisions notwithstanding that only 1 of the persons remains alive.
3: If the fund does not exceed $40,000, or such higher amount as is prescribed by regulations,—
a: instead of applying to the High Court for directions as to the administration of the fund, Public Trust may, with the consent of the committee (if any) or the majority of its members, settle a scheme of administration; and
b: the scheme may be incorporated in a declaration of trust by Public Trust, which is to be treated as the settlor of the trust for the purposes of the trust instrument; and
c: any statements or recitals in the trust instrument are sufficient evidence of their truth, and, subject to paragraph (d), the provisions of the declaration of trust are final and binding on all persons, whether or not beneficially interested under the trust; and
d: Public Trust may if it thinks fit, with the consent of all or a majority of the surviving members of the committee (if any) in New Zealand, modify the scheme so far as it relates to Public Trust's powers in respect of the fund and the mode of its administration, and the declaration of trust must be amended accordingly. 1957 No 36 s 67 General matters
87: Public Trust on appointment to have same rights, etc, as private person
1: When appointed or acting under this Act or any other Act in any of the capacities mentioned in sections 75 to 78
2: This section is subject to the express provisions of this Act or any other Act. 1957 No 36 s 49
88: Property, rights, etc, to vest in Public Trust on appointment
1: If Public Trust is duly appointed executor, administrator, or trustee, all property, functions, powers, authorities, discretions, and rights vested in, or conferred by the trust instrument on, the executor, administrator, or trustee become vested in and exercisable by Public Trust on its appointment as fully and effectually as if it had been named as executor, administrator, or trustee under the instrument, without need for conveyance or assignment or execution of any other instrument.
2: A certificate by Public Trust that any property forms part of an estate in respect of which Public Trust is appointed as executor, administrator, or trustee is to be accepted by all courts and persons as sufficient evidence of that fact without further proof. 1957 No 36 s 50
89: Provisions relating to applications for grants of administrations
1: An application by or on behalf of Public Trust for probate of a will, or for an order to administer with a will annexed, or for any other grant of administration, may be made in any registry of the High Court at the discretion of Public Trust.
2: On such an application, in the absence of evidence to the contrary, no further proof of the death or testacy or intestacy of any person is required than an affidavit that, after due inquiries, Public Trust is satisfied that the person has died either testate or intestate, as appropriate.
3: Subsection (2) applies whether the person was domiciled in New Zealand or elsewhere, and whether the person died in New Zealand or elsewhere. 1957 No 36 s 52
90: Public Trust acting jointly with another person
Where Public Trust is acting jointly with another person in any office or position referred to in section 75
a: all money coming under their control jointly is to be dealt with by them in the same manner as money coming under the control of Public Trust alone; and
b: the written receipt of Public Trust alone for any money, securities, movable property, or document that is deliverable to Public Trust and the other person jointly—
i: constitutes a sufficient discharge for receipt of the thing concerned; and
ii: effectually exonerates the person delivering the thing concerned from seeing to its application or being answerable for its loss or misappropriation; and
c: Public Trust is entitled to the sole custody and possession of all money, securities, movable property, and documents to whose custody and possession it would be entitled if acting alone in the office or position. 1957 No 36 s 43(2)
91: Costs
1: Where Public Trust applies for probate of a will, or for administration with a will annexed,—
a: it is entitled to its costs out of the estate; and
b: it is not liable for the costs of any other person.
2: Where Public Trust applies for administration at the request of any 1 or more beneficiaries who are entitled under an intestacy but who cannot agree as to the person to be appointed administrator,—
a: Public Trust is entitled to its costs out of the estate, whether or not it is appointed administrator; and
b: Public Trust is not liable for the costs of any other person.
3: Where Public Trust is appointed or directed by any court to represent any party or person or class of persons in any proceedings, the costs and expenses of the representation as between solicitor and client, together with a reasonable fee for Public Trust's services, are to be paid to Public Trust—
a: out of the estate or funds or property the subject of the proceedings; or
b: in such other manner as the court directs.
4: Subject to this section, Public Trust may charge, demand, and receive remuneration, fees, or other amounts for its services in accordance with sections 122 to 125 1957 No 36 ss 56(2), 57(2), 58, 60(2)
92: Part does not restrict operation of certain provisions
Nothing in this Part restricts the operation of—
a: section 114(4)
b: section 63 1957 No 36 s 43(3) Section 92(a) amended 30 January 2021 section 161 Trusts Act 2019
6: Elections to administer
93: Public Trust may elect to administer small estates without grant of administration
1: This section applies in a case where—
a: a person has died leaving property situated in New Zealand to be administered (whether the person died testate or intestate, and whether in or out of New Zealand); and
b: the gross value of the property, as estimated by Public Trust at the time of the election under this section, does not exceed $120,000, or such higher amount as is prescribed by regulations; and
c: no person has obtained a grant of administration in New Zealand; and
d: Public Trust would under Part 5
2: In such a case Public Trust may, instead of obtaining a grant of administration, file in the High Court an election in writing to administer the estate of the deceased person.
3: The election must specify—
a: the name, residence, and occupation of the deceased, so far as known to Public Trust:
b: the date of death of the deceased:
c: the property of the deceased situated in New Zealand, as then known.
4: The election must also contain—
a: if the deceased died intestate, a statement to that effect:
b: if the deceased died testate, a statement that, after due inquiries, Public Trust believes that—
i: the document annexed to the election is the testator's last will (or an exemplification of it, if administration has been granted out of New Zealand); and
ii: the will has been validly executed according to the law governing the execution of wills.
5: The election may be filed in the registry of the High Court at Wellington, or in such other registry of the High Court as Public Trust determines either generally or in respect of particular estates.
6: On the election being filed, Public Trust is to be treated in all respects as the executor of the will or the administrator of the estate, as appropriate, as if administration had been granted to Public Trust.
7: If, after filing the election, the gross value of property situated in New Zealand to be administered is found to exceed $150,000 or such higher amount as is prescribed by regulations, Public Trust must—
a: as soon as practicable file a memorandum stating that fact, in the registry of the High Court in which the election was filed; and
b: then proceed in the ordinary manner to obtain a grant of administration in New Zealand (for which purpose Public Trust may uplift from the court any will or exemplification filed with the election).
8: An election may be filed under this section relating to a written informal will to which subpart 3 Wills Amendment Act 1955 1957 No 36 s 72 Section 93(8) substituted 1 November 2007 section 41 Wills Act 2007
94: Elections in respect of unadministered balance of estate
1: This section applies in a case where—
a: a grant of administration has been made in New Zealand in respect of the estate of a deceased person; and
b: the persons to whom the original grant or any substituted grant of administration was made have died leaving part of the estate unadministered; and
c: the gross value of the property situated in New Zealand left unadministered, as estimated by Public Trust at the time of the election under this section, does not exceed $120,000, or such higher amount as is prescribed by regulations; and
d: no person has, since the death of the last administrator, taken out letters of administration de bonis non
2: In such a case Public Trust may, instead of applying for an order to administer de bonis non
3: The election must—
a: set out the fact of the original grant, and the death of the executors or other administrators; and
b: give particulars of the property situated in New Zealand that is left unadministered; and
c: be filed in the registry of the High Court out of which the original grant was issued.
4: On the election being filed, Public Trust is to be treated in all respects as administrator of the estate left unadministered, as if an order to administer de bonis non
5: If, after filing the election, the gross value of the property situated in New Zealand to be administered by Public Trust is found to exceed $150,000 or such higher amount as is prescribed by regulations, Public Trust must—
a: as soon as practicable file in the same registry of the High Court a memorandum stating that fact; and
b: then proceed in the ordinary manner to obtain in New Zealand an order to administer de bonis non 1957 No 36 s 73
95: Operation of election under section 93 or section 94 as regards property overseas
For the purposes of elections under sections 93 94
a: in determining the value of property situated in New Zealand, no account is to be taken of property that is situated out of New Zealand at the time of the filing of the election (whether or not the property is later transferred to New Zealand to Public Trust or any other person in due course of administration, or for any other purpose); but
b: in all other respects, the elections extend and apply to and include property situated out of New Zealand in the same manner and to the same extent in all respects as a grant of administration obtained by Public Trust would, in the circumstances of each particular case, extend or apply to or include that property. 1957 No 36 s 74
96: Revocation of elections filed in error
1: This section applies in a case where—
a: Public Trust has filed an election to administer an estate under section 93 section 94
b: it subsequently discovers that the election is invalid or ineffective because of—
i: the discovery of a will or a later will; or
ii: the revocation or invalidity of a will; or
iii: any other reason.
2: In such a case, Public Trust may file in the registry of the High Court in which the election was filed a memorandum that—
a: sets out the facts; and
b: certifies that the election already filed is invalid or ineffective.
3: On the memorandum being filed,—
a: the election ceases to be of any effect; and
b: an application for administration may be made or a fresh election may be filed as if the election previously filed had not been filed. 1957 No 36 s 76
97: Elections to administer jointly with another person
1: In any case where Public Trust and another person or persons are entitled to elect to administer the estate of a deceased person, the execution of the election to administer, or of any memorandum under section 93(7) section 94(5) section 96(2)
2: A statement in an election to administer to the effect that an executor or co-executor—
a: has died; or
b: is unable or unwilling to act; or
c: has not made application for probate in New Zealand,— is to be accepted by all courts and persons as sufficient evidence of that fact without further proof. 1957 No 36 s 76A
98: Copy of election
A copy of an election under this Part that is certified as a correct copy under the seal of the High Court or a Registrar of the court is for all purposes equivalent to an exemplification of that election. 1957 No 36 s 77(2)
7: Unclaimed property
99: Appointment of Public Trust as manager of unclaimed property
1: Public Trust may be appointed or become manager in accordance with this Part of any real or personal property in New Zealand in the following cases:
a: when, after due inquiry, it is not known—
i: who the owner of the property is; or
ii: where the owner of the property is; or
iii: whether the owner of the property is alive or dead:
b: when the owner of the property is absent from New Zealand or dead and, after due inquiry, it is not known—
i: whether the owner has any agent or administrator in New Zealand with authority to take possession of and administer the property; or
ii: where the agent or administrator is; or
iii: whether the agent or administrator is alive or dead:
c: when the property would vest in the Crown if it were not subject to a trust for another person, whether under section 324
2: Public Trust may not be appointed or become manager under this Part of—
a: customary land within the meaning of Te Ture Whenua Maori Act 1993
b: land of the Crown that has not been alienated, or is not subject to a contract for its alienation. 1957 No 36 s 79
100: Mode of appointment
1: The court may appoint Public Trust as manager of any property under this Part, on application made ex parte
a: in the interests of the owner of the property; or
b: in the interests of any other person; or
c: to secure the development or better utilisation of land.
2: If the court considers that due inquiry has not been made for the owner of the property or the owner's agent or administrator, or as to whether the property is subject to any trust, it may, before making an order,—
a: require further inquiry to be made or advertisements published or notice given; and
b: adjourn the application to enable this to be done.
3: Notice of an appointment under this section must be published in the Gazette
4: No property vests in Public Trust by reason only of the fact that it is appointed manager of the property under this section. 1957 No 36 s 80(1), (3), (4)
101: Public Trust may elect to manage property of low value
1: If the gross value of the property (as estimated by Public Trust) of which Public Trust proposes to become manager does not exceed $40,000 or such higher amount as is prescribed by regulations, Public Trust may, by notice in the Gazette
a: in the interests of the owner of the property; or
b: in the interests of any other person; or
c: to secure the development or better utilisation of land.
2: Before making the election, Public Trust must advertise its intention to do so in a newspaper circulating in the locality where the property is situated (if appropriate) or in 1 or more newspapers circulating in the main metropolitan areas.
3: On notification of the election in the Gazette section 100
4: No property vests in Public Trust by reason only of the fact that it becomes manager of the property under this section. 1957 No 36 s 80(2), (4)
102: Order vesting property in Public Trust or other person
On application by Public Trust, the court may make an order vesting in Public Trust or in any other person any property of which Public Trust is for the time being manager under this Part. 1957 No 36 s 80(4)
103: Powers of Public Trust as manager
1: As manager of any property under this Part, Public Trust may do all or any of the following things:
a: take or recover possession of the property, and recover all money, damages, and mesne profits payable to the owner or the owner's agent or administrator in respect of the property (whether payment became due before or after Public Trust became manager):
b: apply the property, money, damages, or mesne profits, or any income from them, in such manner as it thinks fit, for the maintenance or education (including past maintenance or education) or the advancement or benefit of—
i: the spouse or partner (including civil union partner)
ii: any other person who is or was dependent on the owner:
c: complete, carry out, or enforce in any manner it thinks fit any contract affecting the property or entered into by the owner, and exercise any powers conferred by the contract:
d: pay any mortgages, charges, or other obligations on or attaching to the property, and any debts or other liabilities of the owner of the property, from money received, advanced, or borrowed by Public Trust in exercise of any powers conferred by this Part:
e: perform or discharge any duty or obligation imposed by any enactment, or otherwise, upon the owner of the property:
f: do any act or thing needed to obtain or perfect the title to the property:
g: in the case of land, cut and gather crops growing or situated on the land, or erect or contribute to the erection of any dividing or boundary fences:
h: exercise any power of sale or other powers or rights conferred upon the owner by any mortgage, lease, enactment, or instrument:
i: in the name of the owner, or in Public Trust's own name, bring any action or other proceeding relating to the property, and defend, confess, compromise, or submit to judgment in any action, claim, demand, or proceeding touching the property:
j: exercise as if it were the trustee of the property all powers that, as trustee, it could exercise without court consent under the Trusts Act 2019
k: exercise in respect of the property all other powers that may be conferred on it by the court (whether or not powers that could be conferred on a trustee under the Trusts Act 2019
l: pay or retain expenditure incurred by it as manager of the property and fees, remuneration, and charges in accordance with sections 122 to 125
2: Any money that Public Trust wishes to raise for the purpose of exercising its powers under this section may be advanced from the common fund or borrowed from any other source. 1957 No 36 s 81(1), (2) Section 103(1)(b)(i) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 103(1)(j) amended 30 January 2021 section 161 Trusts Act 2019 Section 103(1)(k) amended 30 January 2021 section 161 Trusts Act 2019
104: Power of Public Trust to pay for improvements
1: Public Trust may, to the extent it thinks just and reasonable, make any payment or allowance for—
a: the value of improvements made to or in respect of any property it manages under this Part; and
b: money expended on or in respect of the property.
2: Public Trust may make a payment or allowance under this section even though the value of the improvements or the money expended may have ceased to be recoverable at law or may never have been recoverable. 1957 No 36 s 82
105: Sale or transfer to occupier or other person entitled to land
1: Where Public Trust, as manager of any land under this Part, sells the land to its occupier,—
a: in fixing the price of the land, Public Trust may make an allowance under section 104
i: the occupier; or
ii: any person by or through or under whom the occupier claims possession of the land:
b: Public Trust is not under any liability for failing to recover any money or damages payable in respect of the occupation of the land.
2: Nothing in subsection (1)—
a: limits or affects the generality of sections 104 110
b: affects the liability of the occupier to the owner of the land.
3: Public Trust may transfer land it manages under this Part to the person equitably entitled to it, if it is satisfied that the registered owner
a: sold the land; and
b: received payment of all amounts to which he or she is entitled on sale.
4: In the case of a transfer under subsection (3),—
a: Public Trust may, before the transfer, require the payment of an appropriate fee, plus charges and expenses incurred or payable by Public Trust:
b: the transfer may be made without requiring any payment on behalf of the registered owner
c: the transfer does not affect the rights that any other person may have in respect of the land. 1957 No 36 s 83 Section 105(3) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 105(4)(b) amended 12 November 2018 section 250 Land Transfer Act 2017
106: Property to be held for owner
Where Public Trust—
a: takes possession of any property as manager under this Part; or
b: receives or recovers any money, damages, or mesne profits in respect of the property,— the property, money, damages, or profits are, after payment out of all money authorised to be applied, expended, or charged by Public Trust, held by Public Trust for the owner of the property. 1957 No 36 s 88
107: Termination of management
1: Public Trust ceases to be the manager of any property under this Part on the happening of any of the following events:
a: if the court so orders, on application served on Public Trust that is made by—
i: the owner of the property; or
ii: the owner's administrator or duly authorised agent; or
iii: a person having an interest in the property or any part of it:
b: if Public Trust publishes notice in the Gazette
c: if Public Trust transfers or delivers the property to the owner, or to the owner's administrator or duly authorised agent.
2: The termination of Public Trust's management of any property under this Part does not affect—
a: any charge acquired by Public Trust under this Part; or
b: the validity of any act or thing done by Public Trust while it was manager of the property.
3: Unless Public Trust consents, the court may not make an order under subsection (1)(a) until Public Trust has been paid—
a: all amounts to which it is entitled under this Part in respect of all expenditure, fees, costs, commission, charges, interest, and expenses incurred by or payable to Public Trust as manager of the property; and
b: all costs incurred by Public Trust of and incidental to the application for the order.
4: Upon Public Trust ceasing to be manager of any property that remains in its name or possession, Public Trust may transfer or deliver the property to the person entitled to it. 1957 No 36 s 89
108: Transfer of unclaimed property to Crown
1: If, after 20 years from the date of the publication in the Gazette
a: the land vests in the Crown as Crown land within the meaning of the Land Act 1948
b: all money held by Public Trust and derived from the land must be paid to a Crown Bank Account section 74
2: If, after 7 years from the date of the publication in the Gazette
a: the property vests in the Crown, if it has not been sold by Public Trust in the exercise of its powers under this Part; and
b: all money held by Public Trust and derived from the property must be paid to a Crown Bank Account section 74 1957 No 36 s 91(1), (2) Section 108(1)(b) amended 25 January 2005 section 65R(3) Public Finance Act 1989 Section 108(2)(b) amended 25 January 2005 section 65R(3) Public Finance Act 1989
109: Land, etc, becoming property of Crown may be vested in local authority
1: The Governor-General may, by Order in Council, transfer any land or money derived from land that becomes the property of the Crown under section 108
a: a local authority within whose district or region
b: a body controlled by such a local authority.
2: The order may specify—
a: the purposes for which the transfer is made:
b: the powers that may be exercised in relation to the land or money transferred.
3: In this section, local authority section 5(1) Local Government Act 2002
4: An order under this section is secondary legislation ( see Part 3 1957 No 36 s 92 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 109(1)(a) amended 1 July 2003 section 262 Local Government Act 2002 Section 109(3) substituted 1 July 2003 section 262 Local Government Act 2002 Section 109(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Miscellaneous provisions
110: Public Trust to have discretion as to exercise of powers
1: Public Trust is not obliged to take any steps or proceedings to cause itself to be appointed or to become manager of any property under this Part.
2: Where Public Trust is manager of any property under this Part—
a: it has complete discretion, subject to any direction of the court, as to whether or not it exercises any of the powers conferred on it by this Part; and
b: it is not liable for anything done or omitted to be done by it in good faith in exercise of its discretion or powers under this Part. 1957 No 36 s 84
111: Public Trust may apply to court for directions
1: Public Trust may apply ex parte
a: any property it manages under this Part; or
b: the management or administration of the property; or
c: the exercise of any power or discretion vested in it as manager.
2: The court may order the application to be served on any persons it thinks appropriate. 1957 No 36 s 85
112: Deficiency in recovery of remuneration and expenses of Public Trust
1: All expenditure incurred by Public Trust as manager of any property under this Part, and all fees, costs, commission, charges, interest, and expenses incurred by or payable to it as manager of the property, are a charge on the property.
2: The charge ranks next in priority to any mortgage or charge to which the property is subject when Public Trust becomes its manager.
3: The amount charged on the property bears interest at a rate fixed by Public Trust.
4: If Public Trust is unable to recover from any person or property the amount of—
a: all expenditure incurred by it as manager of any property under this Part; and
b: all fees, costs, commission, charges, interest, and expenses incurred by or payable to it as manager of the property,— the amount of the deficiency is to be met out of a Crown Bank Account 1957 No 36 s 87 Section 112(4) amended 25 January 2005 section 65R(3) Public Finance Act 1989
113: Documents executed by Public Trust
1: All deeds and other documents executed by Public Trust in its own name as manager of any property under this Part have effect and may be registered as if they were executed by the owner of the property.
2: If any document executed by Public Trust purports to be made in exercise of the powers conferred by this Part, no court or officer or person is concerned to see or inquire whether those powers had or had not become exercisable. 1957 No 36 s 81(3)
114: Order or notice not affected by mistake of fact
An order or notice made or published under this Part, or anything done in pursuance of this Part or of the order or notice, is not invalid or inoperative merely because—
a: it has been made or done under a mistake of fact; or
b: the owner of the property was dead at the time the order was made or the notice published, or has died since that time; or
c: of any disposition of the property made by its owner while Public Trust was the manager of the property under this Part. 1957 No 36 s 94
115: Evidence in respect of unclaimed property
In any case where the court or Public Trust is acting under this Part,—
a: they may accept and act upon and be satisfied with any evidence, whether or not it is strictly legal evidence; and
b: the court may make an order declaring, or Public Trust may acknowledge, a claimant to be the owner or entitled to the possession of any property, despite the claimant being unable to adduce evidence that would entitle him or her to judgment in an action of ejectment or a decree in an action for specific performance; and
c: they may have regard to the circumstances of each case in determining the character and sufficiency of the evidence of title adduced. 1957 No 36 s 90
116: Crown not affected
Nothing in this Part affects the Crown in respect of its property or rights.
117: Limitation Act 2010 Nothing in this Part affects the Limitation Act 2010 1957 No 36 s 95 Section 117 heading amended 1 January 2011 section 58 Limitation Act 2010 Section 117 amended 1 January 2011 section 58 Limitation Act 2010
8: Miscellaneous provisions
118: Special powers that may be exercised by Public Trust
Where Public Trust is executor, administrator, or trustee, or is guardian, or is otherwise authorised to act in the administration of an estate, then, unless a contrary intention is expressed in this Act or in any relevant instrument, Public Trust may at its discretion, but without restricting any other powers, exercise the following powers:
a: if acting as trustee of any public, charitable, or perpetual trust, exercise all the powers of leasing conferred on a leasing authority under the Public Bodies Leases Act 1969
b: where it has power to raise money by mortgage, raise the money by borrowing without giving security:
c: pay or discharge all debts, liabilities, obligations, costs, and expenses:
d: carry out or vary contracts entered into before its appointment:
e: set-off against the claim of any person in respect of any estate (whether as beneficiary, creditor, or otherwise), and of any person claiming by, through, or under that person, all money owing by the first-mentioned person, whether—
i: the money is owing to the same estate or to any other estate under administration by Public Trust; and
ii: the claim of the person in respect of an estate, or the person's liability to pay money to an estate arose before or after Public Trust became entitled to administer the estate or before or after the death of the deceased:
f: grant powers of attorney to any person, in or out of New Zealand, to do any act or thing that Public Trust could do:
g: bring or defend any action, suit, or other proceeding, and suffer judgment to go by default, or consent to any judgment, decree, or order in the action, suit, or proceeding upon such terms and conditions as Public Trust thinks fit:
h: take proceedings to cause any person to be adjudicated a bankrupt, or any company to be placed in liquidation, and vote and act either personally or by proxy at meetings of creditors or shareholders, and (in the case of a company) whether it is in liquidation or not:
i: take criminal proceedings touching or concerning property, and for the purposes of the proceedings the property is to be treated as the property of Public Trust and in the possession of Public Trust:
j: at the expense of the estate, employ such persons as it thinks fit (whether or not they are employees of Public Trust) for the purpose of advising and assisting it in the administration or management of any estate or part of an estate, and remunerate such persons in such manner as it thinks fit. 1957 No 36 s 96
119: Public Trust may act on written statement, etc
1: Unless expressly prohibited by an enactment or by the terms of any particular trust, Public Trust may, in the administration of a trust or estate, or the performance of a power or duty under this or any other enactment, act on credible information (though less than legal evidence) as to matters of fact.
2: It may allow any claim that is made upon or before it upon the affidavit, declaration, or statement of the claimant alone, or, if it thinks fit to call for other evidence, upon such evidence as it requires.
3: It may at any time require a statutory declaration or other sufficient evidence that a person is alive and is the person to whom money or property is payable or transferable, and may refuse payment or transfer until the declaration or evidence is produced.
4: If acting in good faith, Public Trust is not liable for accepting as correct and acting upon the faith of any written statement or statutory declaration by any person, in or out of New Zealand, whom it believes to be trustworthy as to—
a: any birth, death, marriage, civil union,
b: any other matter of fact upon which the title to any estate or any part of an estate may depend. 1957 No 36 s 97 Section 119(4)(a) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005
120: Public Trust may sue itself in different capacity
1: Despite any rule of law or practice to the contrary, Public Trust acting in one capacity may commence proceedings against itself acting in another capacity.
2: If it does so, however, Public Trust must obtain the directions of the court as to the manner in which the opposing interests are to be represented. 1957 No 36 s 101
121: Public Trust may transact business with subsidiary companies
1: Despite the fiduciary rights and liabilities of Public Trust, whether under this Act or otherwise, Public Trust may transact with a subsidiary company any business connected with an estate that Public Trust administers, holds, manages, or controls if, after considering all the circumstances of the case (including appropriate business arrangements offered by other persons), Public Trust is satisfied on reasonable grounds that it is in the best interests of the estate to transact with the subsidiary company.
2: Despite any enactment or rule of law to the contrary, Public Trust and the subsidiary company are entitled to receive fees, premiums, commissions, and other payments properly chargeable or payable in respect of the business as if—
a: Public Trust had not been a fiduciary in respect of the estate; and
b: Public Trust were not, in respect of the other party, a related company.
3: A payment to which subsection (2) applies must be clearly identified in the account rendered in respect of the estate.
122: Remuneration
1: Public Trust may charge, demand, and receive for services provided by it in managing or administering an estate such remuneration by way of commission or otherwise as may from time to time be fixed by Public Trust.
2: Remuneration charged, demanded, or received by Public Trust under subsection (1) must not exceed the greater of the following amounts:
a: an amount equal to 5% of the total of the value of the assets of the estate and the income received by Public Trust in respect of the estate:
b: $100, or such greater amount as is from time to time prescribed by the Governor-General by Order in Council.
3: An order under subsection (2)(b) is secondary legislation ( see Part 3 1967 No 35 s 18 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 122(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
123: Special services
1: In addition to the remuneration authorised by section 122
a: preparing and lodging returns for the purpose of, or in connection with, the assessment of any duties or taxes:
b: managing property, including arranging tenancies and leases and renewals and assignments of tenancies and leases, and arranging and supervising repairs, maintenance, renovations, or extensions of or to the property:
c: tracing missing beneficiaries:
d: attempted realisation of assets ultimately transferred or delivered in kind to the beneficiaries:
e: carrying on a business pending realisation:
f: any other matter of an unusual or special nature.
2: Any fee or other remuneration charged under subsection (1) must be clearly identified in the account rendered in respect of the estate. 1967 No 35 s 18
124: Review of charges
1: Despite anything in this Act or any other enactment, if the court is of the opinion that any commission, fee, or remuneration charged by Public Trust is excessive, the court may reduce the amount of the commission, fee, or remuneration.
2: Application for the reduction of any commission, fee, or remuneration of Public Trust may be made by or on behalf of any person who would receive a greater benefit from the capital or income of the estate out of which the commission, fee, or remuneration is payable in the event of the commission, fee, or remuneration being reduced.
3: No application to the court under this section may be made by or on behalf of any person after the expiration of 6 months from the date of delivery to that person of accounts in which are shown the commission, fee, or remuneration to which the application relates. 1967 No 35 s 19
125: Additional remuneration
1: When Public Trust, at or after the commencement of this Act, in connection with any estate under its administration or management,—
a: lawfully carries on or manages (whether alone or in partnership or through an agent) any business or undertaking; or
b: takes an active part (through a representative or otherwise) in the management or direction of any company; or
c: considers that other circumstances have arisen which justify additional remuneration,— it may apply to the court to fix, in addition to any commission, fee, or remuneration to which it is otherwise entitled, either an additional fee or an additional commission by way of percentage.
2: The court may on an application under subsection (1) allow to Public Trust such additional fee or additional commission by way of percentage as it thinks fit, having regard to—
a: the work, care, skill, and responsibility involved in administering the estate or carrying on or managing or directing the business, undertaking, or company; and
b: the extent of the interest of the estate in the business, undertaking, or company; and
c: the amount of the estate's share in the profits or income from the business, undertaking, or company. 1967 No 35 s 19
126: Power of Public Trust to make small payments without order
If, under this Act or any other enactment, Public Trust is directed to make a payment to a person entitled to it upon the obtaining of an order of a court or a Judge,—
a: Public Trust may make the payment without need for an order if the amount of the payment does not exceed $10,000 or such higher amount as is prescribed by regulations; and
b: that payment is as valid as if it were authorised by an order of a court or a Judge. 1957 No 36 s 110
127: Public Trust may bar claims for small amounts
1: This section applies to claims, including potential claims, to recover from Public Trust any money, chattels, or things valued (as estimated by Public Trust) at less than $10,000 or such higher amount as is prescribed by regulations, whether as creditor, next of kin, beneficiary, or otherwise.
2: If Public Trust rejects or desires to reject any claim or potential claim to which this section applies, Public Trust may serve upon the person by whom or on whose behalf the claim is or may be made a notice calling on the person—
a: to take legal proceedings within a period of 3 months to establish or enforce the claim; and
b: to prosecute the proceedings with all due diligence.
3: If the proceedings are not commenced by the person within the 3-month period,—
a: the claim is barred on the expiry of that period, and the money, chattels, or things become irrecoverable; and
b: Public Trust may proceed to administer and distribute the estate disregarding the claim.
4: The powers given by this section are in addition to the powers conferred by section 135 1957 No 36 s 105 Section 127(4) amended 30 January 2021 section 161 Trusts Act 2019
128: Conditions on which tenant for life may be allowed into possession
1: A person who is a legal or equitable tenant for life of land comprised in an estate being administered by Public Trust is not entitled to the use, occupation, or enjoyment of the land, or to receipt of the income, rents, issues, and profits from it, until the person has given the undertakings (and, where Public Trust requires, security for the undertakings) that Public Trust requires to comply with terms and conditions as to—
a: keeping the estate property in repair; and
b: punctual payment of rates, taxes, insurance premiums, assessments, rents, impositions, and other outgoings; and
c: such other appropriate matters as Public Trust thinks fit.
2: Public Trust may direct the person to give up possession of the land if—
a: the person fails to observe any of the duties or obligations attaching to the person as tenant for life, or imposed by Public Trust or the court; or
b: for any other reason Public Trust determines it to be necessary or expedient to enter into possession of the land.
3: The direction must—
a: be given by notice in writing personally delivered to the person, or forwarded by registered letter to the person at their last known address; and
b: specify a date by which the person must give up possession, being a date at least 1 month after the date of the direction.
4: If the person fails to give up possession of the land on the expiry of the date specified in the notice,—
a: the person is then to be treated as a trespasser; and
b: Public Trust may take the necessary legal proceedings to have the person ejected; and
c: it is no defence in such proceedings that the person sought to be ejected is a legal or equitable life tenant of the land.
5: The application of this section in any particular case is subject to any order of the court.
6: Subsection (1) does not authorise Public Trust to impose terms and conditions other than those that the court could impose on an appropriate application. 1957 No 36 s 108
129: Declaration of non-revocation unnecessary where Public Trust executes document as attorney
1: Where Public Trust executes a document as attorney,—
a: it is not necessary for Public Trust to furnish evidence by way of statutory declaration that no notice or information of the revocation of the power of attorney by death or otherwise has been received by it; and
b: no person may require Public Trust to furnish such evidence.
2: The execution by Public Trust of a document as attorney is to be accepted by all persons as conclusive proof of the non-revocation of the power of attorney at the time when the document was executed. 1957 No 36 s 116
130: Deposit of wills
1: Any testator may deposit his or her will with Public Trust, whether or not Public Trust is appointed executor.
2: If Public Trust is not appointed executor of the will, then after the death of the testator it must deliver the will to—
a: the person nominated by the testator in writing; or
b: the person Public Trust thinks is entitled to the will, in the absence of a nomination by the testator or if the person nominated is dead or cannot be found.
3: If Public Trust is appointed executor, then, after the testator's death,—
a: notice of the acceptance or rejection of its appointment must be given in the manner Public Trust thinks proper; and
b: if Public Trust rejects the appointment, it must deliver the will to—
i: the person nominated by the testator in writing; or
ii: the person it thinks is entitled to the will, in the absence of a nomination by the testator or if the person nominated is dead or cannot be found. 1957 No 36 s 118
131: Existence of property belonging to estate being administered by Public Trust to be disclosed
1: This section applies to a person or body who, in relation to a deceased person,—
a: is in possession of property of the deceased person; or
b: has in their books, accounts, or other records any property or money to the credit of the deceased person; or
c: is an association or partnership in respect of which—
i: the deceased person is entitled to a share in its assets; or
ii: the personal representatives of the deceased person are entitled to a payment as the deceased person's share in its assets; or
d: is a corporation or association, and the deceased person is the registered proprietor of any of its shares; or
e: is indebted to the deceased person.
2: If the relevant property, money, shares, or debts referred to in subsection (1) are to become vested in or belong to Public Trust, the person or body to whom that subsection applies must, on becoming aware of the death and of Public Trust's interest in the property, immediately notify Public Trust of the extent, nature, and situation of the property, money, shares, or debts. 1957 No 36 s 114
132: Protection of purchasers and others
1: No purchaser, vendor, mortgagee, lessee, tenant, or other affected person is obliged to inquire as to the authority or power of Public Trust to make any sale, exchange, purchase, mortgage, lease, or tenancy.
2: In particular, no such person is obliged to inquire—
a: whether the proposed transaction is consistent with the trusts on which the land or other interests to be dealt with are held; or
b: whether any required authority of Public Trust or another person has been given; or
c: whether Public Trust has complied with any direction of the trust instrument or any enactment requiring the calling of tenders, submissions to auction, or other matters preliminary to the proposed transaction; or
d: otherwise as to the propriety or regularity of the transaction; or
e: as to the application of any money received by Public Trust on the sale, exchange, mortgage, or lease. 1957 No 36 ss 123, 124
133: No notice of trust to arise merely from dealing with Public Trust
The fact that Public Trust is the person, or one of the persons, dealt with in any dealing with property does not of itself constitute notice of a trust. 1957 No 36 s 125
134: Registration of shares
1: The entry of Public Trust by that name in the register of shareholders of a company does not constitute notice of a trust.
2: A company is not entitled to object to enter the name of Public Trust in its register of shareholders by reason only that Public Trust is a trustee or is a corporation.
3: Despite any enactment or other law affecting the registration of persons holding shares as trustee or in any other representative capacity, Public Trust is entitled to be registered as the proprietor of shares as trustee or as other representative where—
a: the shares are comprised in an estate administered by Public Trust; or
b: the shares are vested in Public Trust under the terms of a trust instrument; or
c: the shares are purchased by Public Trust in the exercise of a trust, direction, or authority imposed or conferred upon it.
4: Upon registration, Public Trust is for all purposes other than the liability referred to in subsection (5) to be treated as the registered proprietor of the shares, and no person is concerned to see or inquire whether any sales, dealings, or transactions by or with Public Trust as to the shares are or are not within its powers.
5: Where Public Trust is registered as the proprietor of shares as trustee or other representative,—
a: its liability in respect of the shares in no case exceeds the value of any other assets that, at the time when demand is made for the satisfaction of the liability, are held by Public Trust upon the same trusts as are applicable to the shares; and
b: if the other assets are insufficient to meet the liability, then, in respect of the unpaid balance of the liability, the body or association concerned has the same rights against the person beneficially entitled to the shares as if that person were the shares' registered proprietor.
6: Despite any enactment, charter, deed of settlement, or other instrument, the number of shares in the capital of any bank that may be held by Public Trust in its corporate capacity is not subject to any limit.
7: In this section, shares
a: means shares in any body, whether corporate or not, or in any association; and
b: includes stock, bonds, debentures, and other securities for money. 1957 No 36 s 126
135: Public Trust may evidence and register dealings in land when acting in different capacities
1: Where Public Trust is registered as the proprietor of any estate or share or interest in land, whether as administrator, trustee, or otherwise (including itself in its own corporate capacity), it may, as fully and effectually as if it were a separate person in each capacity,—
a: transfer, assign, convey, mortgage, or lease the estate, share, or interest, or any part of it, to itself in another capacity:
b: grant easements in respect of the estate, share, or interest to itself in another capacity:
c: enter into covenants and agreements in respect of any such transaction with itself in the one capacity so as to bind itself in the other capacity.
2: The covenants and agreements referred to in subsection (1)(c) are binding upon or (as the case may be) operative in favour of an assignee from Public Trust taking from it in the relevant capacity.
3: Upon any transfer, assignment, conveyance, mortgage, lease, or grant of easement referred to in subsection (1) being presented in proper order for registration under the Land Transfer Act 2017
a: contain notice of or evidence a trust in respect of the estate, share, or interest affected; or
b: contain notice of or evidence the fact that Public Trust takes the transfer, assignment, conveyance, mortgage, lease, or grant in the capacity of a trustee.
4: Once any such transfer, assignment, conveyance, mortgage, lease, or grant has been registered under the Land Transfer Act 2017 Deeds Registration Act 1908
a: is affected by any notice of trust contained in or evidenced by the transfer, assignment, conveyance, mortgage, lease, or grant; or
b: is concerned to see or inquire whether Public Trust had authority to enter into the transaction. 1957 No 36 s 127 Section 135(3) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 135(4) amended 12 November 2018 section 250 Land Transfer Act 2017
136: Same remedies against Public Trust as against other persons
1: A person is entitled to the same remedy against Public Trust as it would be entitled to against a private person, if the person sustains any injury or suffers any loss by any act or thing done or omitted by Public Trust, or by any employee, agent, representative, or other person, acting in good faith or purporting to act under this Act or any other Act.
2: Any such person entitled to a remedy is entitled to be indemnified out of the funds of Public Trust and, if that is insufficient, then out of money appropriated for the purpose by Parliament. 1957 No 36 s 136
137: Protection of Public Trust acting under power of attorney
Public Trust is not liable for acting or paying money in good faith under or in pursuance of a power of attorney by reason of the fact that, at the time of the payment or act, the person who gave the power of attorney was dead or had done some act to avoid the power, if this fact was not known to Public Trust at the time of it so acting or paying. 1957 No 36 s 117
138: Protection of Public Trust acting under order of court
1: Where Public Trust acts under or in pursuance of any judgment or order of a court or Judge, Public Trust is to be treated as having discharged its duty in connection with the subject matter of the judgment or order, even if the judgment or order is later invalidated, overruled, set aside, or otherwise rendered of no effect.
2: This section does not indemnify Public Trust in respect of any act if it has been guilty of any fraud or wilful concealment or misrepresentation—
a: in obtaining the judgment or order; or
b: in acquiescing in the court or Judge giving or making the judgment or order. 1957 No 36 s 131
139: Validity of acts by Public Trust under administration granted in error
1: This section applies where—
a: under the belief in good faith that a person has died testate or intestate, Public Trust—
i: has obtained a grant of administration; or
ii: is administering an estate under statutory powers; or
iii: is appointed or acting as trustee under a will; and
b: it is afterwards found that—
i: the person is living; or
ii: the person did not die intestate; or
iii: a will exists that revokes or alters the will that Public Trust has proved, or under which it becomes administrator or is administering or acting as a trustee; or
iv: the authority of Public Trust to administer is for any other reason revoked or rendered of no effect.
2: In a case to which this section applies, all acts and things done or omitted by Public Trust are as valid and effectual as if it had been lawfully appointed or entitled to act as executor, administrator, or trustee.
3: Nothing in this section affects or prejudices any other protection that may be available at law to Public Trust.
4: Nor does anything in this section affect or prejudice the right of a person against another person to whom Public Trust has transferred property or paid money.
5: The onus of proving that Public Trust has not acted in good faith in respect of any of the matters referred to in this section is upon the person who alleges it. 1957 No 36 s 64
140: Board members and employees not personally liable except for fraud or crime
Section 140 repealed 25 January 2005 section 200 Crown Entities Act 2004
141: Limitation of liability
The immunity in section 121 section 75(1) Section 141 substituted 25 January 2005 section 200 Crown Entities Act 2004
142: Liability of office solicitor in conveyancing transactions
If the office solicitor acts for both parties in a conveyancing transaction between Public Trust and any person, or if he or she acts in any matter incidental to his or her duties, the liability that the office solicitor would incur if acting on his or her own account is to be borne by Public Trust. 1957 No 36 s 137
143: Costs of legal proceedings
1: In all proceedings before any court, Judge, board, commission, tribunal, or other body or person in which Public Trust is a party or is in any way interested and is represented by its office solicitor, Public Trust is entitled to the same costs and allowances as if it had been represented by counsel or a solicitor not employed by it.
2: All costs, fees, allowances, and charges earned by the office solicitor must be applied and disposed of as a profit of Public Trust. 1957 No 36 s 130
144: Certificate by Public Trust as to its legal status in any matter
1: Despite any enactment or law to the contrary, a certificate by Public Trust in relation to a deceased person that—
a: states the name, residence, and occupation of the deceased person at the time of his or her death, and the date of death; and
b: certifies that Public Trust has obtained a grant of probate or an order to administer, or is otherwise authorised to administer the estate; and
c: states the date when the probate or order to administer was granted, or the manner in which and time at which Public Trust became authorised to administer,— is to be accepted by all courts and persons as sufficient evidence, without further proof, of the death of the person, the appointment of Public Trust as executor or other administrator, or Public Trust's right to administer.
2: Despite any enactment or law to the contrary, a certificate by Public Trust in any particular case that—
a: certifies that Public Trust is authorised to act as trustee, guardian, manager, agent, attorney, liquidator, committee, receiver, or in any other capacity in the particular case; and
b: states the manner in which and time at which it became so authorised to act— is to be accepted by all courts and persons as sufficient evidence, without further proof, of Public Trust's right to act.
3: A certificate under this section is sufficient for the purpose of registering Public Trust as proprietor of—
a: an estate or interest in land under the Land Transfer Act 2017
b: a mining privilege under the Mining Act 1971
c: any shares, stock, or property in any bank, company, body, or association.
4: No bank, company, body, association, or person to which a certificate under this section is produced is concerned to inquire concerning the trusts on which Public Trust holds the land, mining privilege, shares, stocks, or property, or as to Public Trust's authority to transfer or deal with it.
5: In the case of land under the Deeds Registration Act 1908
a: the certificate is equivalent for registration purposes to the probate, order to administer, election to administer, trust instrument, order, power of attorney, or other document or authority under which Public Trust is acting; and
b: it is not necessary to register that relevant document or authority.
6: A statement of the purport of any trust instrument, order, power of attorney, or other document or authority in any certificate under this section is sufficient evidence of that purport, and no-one is concerned to inquire beyond that statement. 1957 No 36 s 78 Section 144(3)(a) amended 12 November 2018 section 250 Land Transfer Act 2017
145: Certificate where Public Trust acting jointly
1: In any case where Public Trust is acting jointly with another person in any of the capacities mentioned in section 144 section 88
a: the facts set out in the certificate that are authorised to be set out in it by section 144 section 88
b: the appointment of Public Trust and the other person; and
c: the right of Public Trust and the other person to administer or act.
2: It is not necessary for the certificate to be executed by the person with whom Public Trust is acting.
3: This section applies despite any enactment or law to the contrary. 1957 No 36 s 78A
146: Service of notices by Public Trust
1: Where under this Act notice is required to be given by Public Trust, or notice is given by Public Trust or any employee or person acting under this Act or in good faith purporting to act under this Act, it is sufficient if the notice is sent by registered letter addressed to the person to whom the notice is to be given at the person's then known or last known place of residence or business.
2: If a notice is sent by post in the manner described in subsection (1), it will be treated in the absence of proof to the contrary as having been given at the time when the letter would have been delivered in the ordinary course of post. 1957 No 36 s 138
147: Regulations
1: The Governor-General may by Order in Council make regulations prescribing—
a: amounts for the purposes of sections 86(3) 93(1)(b) and (7) 94(1)(c) and (5) 101(1) 126 127(1)
b: the form of the declaration of fidelity and secrecy for the purposes of section 34
c: for the purposes of any initial disclosure or ongoing disclosure of expenses and management fees in relation to a group investment fund required by sections 70 71
i: the persons to whom the disclosures must be made; and
ii: when they must be made; and
iii: the information to be disclosed:
d: the fee payable to the Registrar of the High Court for—
i: the filing of an election under Part 6
ii: certifying as a correct copy under the seal of the court a copy of an election under Part 6
e: such other matters as may be contemplated by or necessary or desirable for the purposes of this Act.
2: Regulations made under subsection (1)(c) may—
a: prescribe different disclosure requirements for different classes of investment or fund or investor:
b: dispense with disclosure requirements in appropriate cases, whether because of the temporary nature of an investment or for other good reason, and specify conditions to which any dispensation from disclosure requirements may be subject:
c: specify the consequences of any failure to disclose or late disclosure (which may include a prohibition on the charging or reimbursing of any fees or expenses until disclosure is made):
d: prescribe acceptable manners of notification (which need not be in accordance with section 146
e: make special provision in relation to existing funds within the meaning of section 171
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 147(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
9: Transfer of Public Trust undertaking
148: Interpretation
In this Part, unless the context otherwise requires,— appointed day section 2(1) existing undertaking
a: means—
i: all property and estates administered, held, managed, or controlled by the Public Trustee or the Public Trust Office immediately before the appointed day; and
ii: all rights and liabilities of the Public Trustee and the Public Trust Office; and
b: includes any reserves of the Public Trust Office in existence immediately before the appointed day, including the following funds formerly constituted under the Public Trust Office Act 1957
i: the Investment Fluctuation Reserve Fund; and
ii: the Assurance and Reserve Fund; and
iii: the General Legal Expenses Reserve Fund; but
c: does not include any amount to which section 167 fiduciary rights and liabilities liabilities Public Trust section 7 Public Trust Office Public Trust Office Act 1957 Public Trustee Public Trust Office Act 1957 transferred employee
149: Vesting of existing undertaking
On the appointed day the existing undertaking vests in Public Trust.
150: Transfer of fiduciary rights and liabilities
Except as expressly provided by this Act, on and from the appointed day the fiduciary rights and liabilities vest in Public Trust.
151: Dissolution of Public Trustee, Public Trust Office, and Investment Board
1: On and from the appointed day, the Public Trustee, the Public Trust Office, and the Investment Board are dissolved.
2: For the purpose of this section, Investment Board section 14 of the Public Trust Office Act 1957
152: References in instruments
1: A reference (express or implied) to the Public Trustee or the Public Trust Office in any enactment, or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the appointed day, must be read as a reference to Public Trust.
2: A reference (express or implied) to an officer of the Public Trust Office in any enactment, or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the appointed day must be read as a reference to—
a: the corresponding employee of Public Trust; or
b: if there is no corresponding employee, such other employee of Public Trust as it thinks fit.
3: This section is subject to section 170
153: Status of contracts and other instruments
1: Contracts, agreements, conveyances, deeds, leases, licences, and other instruments, undertakings, and notices (whether in writing or not), entered into by, made with, given to or by, or addressed to the Public Trustee or the Public Trust Office (whether alone or with another person) before the appointed day and having effect immediately before the appointed day ( contracts and other instruments
2: The contracts and other instruments are binding on, and enforceable by, against, or in favour of, Public Trust as if Public Trust and not the Public Trustee or the Public Trust Office had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed.
154: Status of existing securities
1: A security held by the Public Trustee or the Public Trust Office as security for a debt or other liability to the Public Trustee or the Public Trust Office incurred before the appointed day—
a: is available to Public Trust as security for the discharge of that debt or liability; and
b: if the security extends to future or prospective debts or liabilities, is available as security for the discharge of debts or liabilities to Public Trust incurred on or after the appointed day.
2: Public Trust is entitled to the same rights and priorities, and is subject to the same liabilities, in relation to the security as the Public Trustee or the Public Trust Office would be if this Act had not been passed.
155: Continuation of proceedings
1: An action, arbitration, proceeding, or cause of action that was pending or existing by, against, or in favour of the Public Trustee or the Public Trust Office, or to which the Public Trustee or the Public Trust Office was a party, before the appointed day may be continued and enforced by, against, or in favour of Public Trust.
2: It is not necessary to amend a pleading, writ, or other document to continue the action, arbitration, proceeding, or other cause of action.
156: Effect of Act
Nothing effected or authorised by this Act—
a: places the Public Trustee, the Public Trust Office, Public Trust, or any other person in breach of contract or confidence, or makes any of them liable for a civil wrong; or
b: entitles a person to terminate or cancel a contract or arrangement, or to accelerate the performance of an obligation, or to impose a penalty or increased charge; or
c: places the Public Trustee, the Public Trust Office, Public Trust, or any other person in breach of an enactment, a rule of law, or a provision of a contract that prohibits, restricts, or regulates the assignment or transfer of property or the disclosure of information; or
d: releases a surety from an obligation; or
e: invalidates or discharges a contract or surety.
157: Books and documents to remain evidence
1: A document, matter, or thing that would have been admissible in evidence for or against the Public Trustee or the Public Trust Office is, on and after the appointed day, admissible in evidence for or against Public Trust.
2: For the purpose of this section, document section 2(1)
158: Registers
1: A Registrar of Deeds, Registrar General of Land, or any other person charged with keeping books or registers is not required to change the name of the Public Trustee or the Public Trust Office to Public Trust in the books or registers, or in a document, solely because of the provisions of this Act.
2: If Public Trust presents an instrument referred to in subsection (3) to a Registrar or other person, the presentation of that instrument by Public Trust is, in the absence of proof to the contrary, sufficient evidence that the property is vested in Public Trust.
3: For the purposes of this section, the instrument need not be an instrument of transfer, but must—
a: be executed or purport to be executed by Public Trust; and
b: relate to a property held by the Public Trustee or the Public Trust Office immediately before the appointed day; and
c: be accompanied by a certificate by Public Trust that the property became vested in Public Trust by virtue of the provisions of this Act.
159: Liability of employees and agents
1: A person who, at any time before the appointed day, held office as the Public Trustee, or who was an officer, employee, agent, or representative of the Public Trust Office, is not personally liable in respect of an act or thing done or omitted to be done by him or her before the appointed day in the exercise or bona fide purported exercise of an authority conferred by or under the Public Trust Office Act 1957
2: This section applies only—
a: in the absence of actual fraud; and
b: if the act or omission does not amount to an offence. Transfer of employees
160: Transfer of existing employees
On the appointed day, each employee of the Public Trust Office (excluding the Public Trustee) becomes an employee of Public Trust.
161: Terms and conditions of employment of transferred employees
1: The employment of a transferred employee must be on terms and conditions no less favourable to the transferred employee than those applying to the employee immediately before the appointed day.
2: Subsection (1)—
a: continues to apply to the terms and conditions of employment of a transferred employee until those terms and conditions are varied by agreement between the transferred employee and Public Trust; and
b: does not apply to a transferred employee who receives any subsequent appointment with Public Trust.
162: Continuity of employment
For the purposes of every enactment, law, determination, contract, and agreement relating to a transferred employee (including the deed dated 31 March 1993 establishing the Public Trust Office Superannuation Fund),—
a: the contract of employment of that employee that applied immediately before the transfer in respect of that person's employment in the Public Trust Office is deemed to have been unbroken; and
b: the employee's period of service with the Public Trust Office, and every other period of service that is recognised by the Public Trust Office as continuous service, is deemed to have been a period of service with Public Trust.
163: No compensation for technical redundancy
A transferred employee is not entitled to receive any payment or any other benefit solely on the ground that—
a: the position held by the employee in the Public Trust Office has ceased to exist; or
b: the employee has ceased, as a result of the transfer to Public Trust, to be an employee of the Public Trust Office.
164: Contributors to Government Superannuation Fund
1: A transferred employee who, immediately before the appointed day, was a contributor to the Government Superannuation Fund under Part 2 or Part 2A of the Government Superannuation Act 1956
2: The Government Superannuation Fund Act 1956
3: A transferred employee who ceases to be a contributor to the Government Superannuation Fund is not subsequently entitled to again become a contributor.
4: For the purposes of applying the Government Superannuation Fund Act 1956 controlling authority
5: In this section, employee Application of Income Tax Act 1994
165: Application of Income Tax Act 1994
1: For the purposes of the Income Tax Act 1994
a: Public Trust is to be regarded as the same person as the Public Trustee—
i: when determining the adjusted tax value of depreciable assets, and in calculating disposal gains and losses in respect of depreciable assets; and
ii: in relation to the treatment of accrual expenditure in respect of which there is an unexpired portion within the meaning of section EF 1 of the Income Tax Act 1994
b: the vesting of financial arrangements under section 149
2: Nothing in subsection (1) applies in respect of the depreciable assets, accrual expenditure, or financial arrangements of any estate. Application of Securities Act 1978 Heading repealed 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
166: Application of Securities Act 1978
Section 166 repealed 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Amount of reserves to be paid to the Crown
167: Amount of reserves to be paid to the Crown before appointed day
1: The Minister of Finance may, with the agreement of the Minister, determine the amount of any reserves of the Public Trust Office that the Public Trustee must pay into a Crown Bank Account Gazette
2: The Public Trustee must pay that amount into a Crown Bank Account
3: A payment made under this section is the absolute property of the Crown.
4: This section prevails over section 23 of the Public Trust Office Act 1957 Section 167(1) amended 25 January 2005 section 65R(3) Public Finance Act 1989 Section 167(2) amended 25 January 2005 section 65R(3) Public Finance Act 1989
10: Repeals, amendments, and transitional provisions
168: Repeals
1: The Public Trust Office Act 1957 (1957 No 36)
2: The Enemy Property Act 1951 (1951 No 48)
169: Revocations
1: The following regulations and order are revoked:
a: Enemy Property Regulations 1954 (SR 1954/32)
b: Public Trust Office Regulations 1958 (SR 1958/66)
c: Public Trust Office (Investments) Order 1969 (SR 1969/122)
2: Despite subsection (1)(b), regulations 4 and 8 and Schedule 1 of the Public Trust Office Regulations 1958
a: references in those provisions to the Public Trustee, the Public Trust Office, and the Public Trust Investment Board were references to Public Trust; and
b: references to provisions of the Public Trust Act 1957 were references to the equivalent provisions of this Act.
170: Amendments to other enactments
1: The Acts specified in Schedule 2
2: The local Acts specified in Schedule 3
3: The private Acts specified in Schedule 4
4: The regulations specified in Schedule 5
171: Transitional provision in relation to existing investments in group investment funds
1: This section applies in respect of funds ( existing funds disclosure regulations
2: Nothing in section 70
3: Public Trust may not, however, charge, demand, receive, or retain any management fees under section 71
a: section 71(2)(b) Securities Act 1978
b: the disclosure regulations dispense with the requirement for initial disclosure of management fees.
4: The making of initial disclosure in respect of any existing funds does not authorise the charging of a management fee in relation to services rendered in respect of those existing funds during any period prior to the date of the initial disclosure, except as otherwise provided in the disclosure regulations.
172: Financial statement and report on operations for period commencing 1 July 2001
1: As soon as possible after the day on which this Act comes into force under section 2(1) broken period
a: section 22 of the Public Trust Office Act 1957
b: Public Trust were the Public Trustee; and
c: the broken period were a financial year.
2: The balance sheet and accounts referred to in subsection (1) must be provided by Public Trust to the Controller and Auditor-General who, after auditing them, must transmit them and any report on them to the Minister.
3: As soon as possible after the day on which this Act comes into force under section 2(1)
4: The Minister must, within 12 sitting days after receiving them, present to the House of Representatives copies of—
a: the audited balance sheet and accounts referred to in subsection (1), and any report on them by the Controller and Auditor-General; and
b: the report on the operations of the Public Trust Office referred to in subsection (3). |
DLM119901 | 2001 | Child Support Amendment Act 2001 | 1: Title
1: This Act is the Child Support Amendment Act 2001.
2: In this Act, the Child Support Act 1991 the principal Act
2: Commencement
Except as provided in section 3(5)
3: Remedial amendments relating to relevant income year for assessments of child support
1: Section 2(1)
a: omitting from paragraph (a) last relevant income year source deduction payments withholding income
b: inserting, in their appropriate alphabetical order, the following definitions: income from employment paragraph (a) of the definition of that term in section OB1 of the Income Tax Act 1994 section OB1 of the Income Tax Act 1994 withholding income
a: income from employment that has a New Zealand source that is subject to the PAYE rules (as defined in section OB1 of the Income Tax Act 1994
b: interest or a dividend that has a New Zealand source that is subject to the RWT rules (as defined in section OB1 of the Income Tax Act 1994 .
2: Section 29(1) paragraph (a) child support income amount source deduction payments withholding income
3: The heading to section 38A source deduction payments not available withholding income not available for full income year
4: Section 38A(1) source deduction payments withholding income
5: This section is deemed to have come into force on 1 April 2001 and applies to child support payable for the child support year that commenced on 1 April 2001 and for subsequent child support years.
6: Despite subsection (5)
a: a liable parent objected to the assessment on the ground set out in section 91(1)(a)
b: the assessment is altered by the Commissioner under section 92(4)
4: Maximum rate of child support
1: Section 29(1)(b) child support income amount twice 2.5 times
2: Section 29(1)(b) inflation percentage average
3: Section 38A(2)(b) twice 2.5 times
4: Section 39(2) twice 2.5 times
5: This section applies to child support payable for the child support year commencing 1 April 2002 and for subsequent child support years.
5: Minimum rate of child support
1: Section 72(1) paragraph (a)
a: child support under a formula assessment is, in respect of all of the children for whom the parent is liable to pay child support under a formula assessment,—
i: for the child support year commencing 1 April 2002, $663:
ii: for the child support year commencing 1 April 2003, $663 adjusted by the movement in the all groups index number of the New Zealand Consumer Price Index during the 9-month period that ends with 31 December 2002:
iii: for each subsequent child support year, the minimum annual child support rate under this paragraph for the immediately preceding child support year, adjusted by the applicable inflation percentage: .
2: The principal Act is further amended as set out in the Schedule.
3: This section applies to child support payable for the child support year commencing 1 April 2002 and for subsequent child support years.
4: The new minimum annual rate of child support substituted by this Act does not apply to orders and determinations made on or before the commencement of this Act, or to formula assessments that implement those orders and determinations.
5: The new minimum annual rate of child support substituted by this Act applies to orders and determinations made after the commencement of this Act, and to formula assessments that implement those orders and determinations, but only in relation to child support payable on or after 1 April 2002.
6: Subsections (4) (5) |
DLM90703 | 2001 | Fair Trading Amendment Act 2001 | 1: Title
1: This Act is the Fair Trading Amendment Act 2001.
2: In this Act, the Fair Trading Act 1986 the principal Act
2: Commencement
This Act comes into force on the day after the day on which it receives the Royal assent.
3: Other orders
Section 43 subsection (5)
5: An application under subsection (1)
4: Provisions as to proceedings already barred and pending proceedings
Nothing in this Act—
a: enables any proceedings to be brought which were barred before the commencement of this Act; or
b: affects any proceedings commenced before the commencement of this Act. |