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Four new bills in Parliament at end of 2019

23 January 2020

During Parliament's last sitting week in 2019 and so far this year, four new bills have been introduced.

Bill introduced for new regulatory regime for financial market infrastructures  

The Financial Market Infrastructure Bill was introduced on 17 December 2019. The Minister for Finance, Grant Robertson, is in charge of the bill.

This bill establishes a new regulatory regime for financial market infrastructures (FMI), and also provides certain FMIs with legal protections relating to settlement finality, netting, and the enforceability of their rules.

Financial Market Infrastructures Bill

FMIs are multilateral systems that provide trading, clearing, settlement, and reporting services in relation to payments, securities, derivatives, and other financial transactions.

The bill establishes a new regulatory regime for FMIs. It also provides certain FMIs with legal protections relating to settlement finality, netting, and the enforceability of their rules.

The purposes of the bill are to:

  • promote the maintenance of a sound and efficient financial management system
  • avoid significant damage to the financial system that could result from problems with an FMI, an operator of an FMI, or a participant of an FMI
  • promote the confident and informed participation of businesses, investors, and consumers in the financial markets
  • promote and facilitate the development of fair, efficient, and transparent financial markets.

Part 1 contains the preliminary provisions and regulator (subpart 2).

Clauses 8 to 10 generally provide for the regulator’s functions to be carried out by the Reserve Bank and the FMA acting jointly

Clause 11 provides for how the Reserve Bank and the FMA will work together.

Clause 12 sets out the regulator’s functions and the Ministers’ functions.

Part 2 provides for the regulator’s powers to require information, reviews, and independent reports.

Part 3 relates to designated FMIs.

Clause 20 allows the Minister to declare an FMI to be a designated FMA on a recommendation made by the regulator.

Part 4 provides for dealing with systematically important FMIs that are distressed.

Clause 78 sets out the purposes for which the regulator’s powers may be exercised.

Subpart 2 provides for directions to operators or participants and removal of directors.

Clauses 89 to 91 of subpart 3 provide for statutory management of a FMA operator. An order may only be made on the advice of the Minister given in accordance with a recommendation of the regulator.

Part 5 provides for offences and pecuniary penalties.

Part 2, sections 20 to 29, subpart 2 of Part 3, sections 124(1) to (3) and (4)(a), (b)(i), and (c)(i), 125, and 126, subpart 2 of Part 5 (except section 127(1)(a), (b), and (d) to (f) and (2)), and section 137) will come into force the day after the date of Royal assent.

This rest of the Act will come into force on the date appointed by the Governor-General by Order in Council, and one or more orders may be made bringing different provisions into force on different dates and appointing different dates for different purposes.

If not previously brought into force, other provisions will come into force on the third anniversary of the date of Royal assent.

Ahuriri Hapū settlement bill introduced

The Ahuriri Hapū Claims Settlement Bill was introduced on 20 December 2019. Minister for Treaty negotiations Andrew Little is in charge of the bill.

This settlement bill records the acknowledgements and apology given by the Crown to Ahuriri Hapū in the deed of settlement dated 2 November 2016, and gives effect to the deed, in which the Crown and Ahuriri Hapū agree to a final settlement of all historical Treaty of Waitangi claims of Ahuriri Hapū.

The seven Ahuriri Hapū are Ngāti Hinepare, Ngāti Māhu, Ngāti Matepū, Ngāti Paarau (which includes Ngāi Tahu Ahi), Ngāi Tāwhao, Ngāti Tū, and Ngāi Te Ruruku. Ahuriri Hapū are based in the Hawke’s Bay region, their area of interest bounded by the sea to the east and the Kaweka Range to the west, the Ngaruroro River to the south, and the Esk River to the north.

The historical claims of Ahuriri Hapū include widespread land loss through early land purchasing, including the 1851 Ahuriri purchase that saw the loss of half their rohe, warfare and subsequent detention of their men on the Chatham Islands, the Crown’s acquisition of Te Whanganui-ā-Orotu, and the effects of native land laws and social and economic developments that led to poverty within the iwi.

Part 1 contains preliminary matters, historical account and apology (clauses 7 to 10), and settlement of historical claims of Ahuriri Hapū and provision that the settlement is final (clause 15).

Part 2 contains cultural redress provisions.

Subpart 3 (clauses 32 to 45) contains the Crown’s acknowledgement of the statements made by Ahuriri Hapū of their association with certain statutory areas. The purposes and limits of the statutory acknowledgement are specified.

Part 3 establishes Te Komiti Muriwai o Te Whanga (the Komiti) and provides for the preparation of the Te Muriwai o Te Whanga Plan (the Plan).

Clause 85 sets out the functions of Komiti which includes a number of functions relating to the provision of guidance and co-ordination in the management of Te Muriwai o Te Whanga and to the protection of its health and well-being.

Clause 94 provides for the purpose and scope of the Plan which includes setting out the values of Te Muriwai o Te Whanga and setting out the vision, objectives, and desired outcomes for Te Muriwai o Te Whanga that will serve to protect and enhance those values.

Clauses 98 and 99 set out the process for preparing, approving, reviewing, and amending the Plan.

Part 4 contains commercial redress provisions, the transfer of deferred selection properties (subpart 1), provision, for the unlicensed land that is Crown forest land to cease being Crown forest land (subpart 2), access to protected sites (subpart 3) and right of first refusal over RFR land (subpart 4).

If passed, the Act will commence on the day after the date on which it receives the Royal assent.

Bill to extend consumer protections in Fair Trading Act

The Fair Trading Amendment Bill was introduced on 17 December 2019. Minister for Commerce and Consumer Affairs, Kris Faafoi is in charge of the bill.

The bill amends the Fair Trading Act 1986 to introduce new protections against unfair practices by prohibiting unconscionable conduct in trade, and by extending the Act’s existing protections against unfair contract terms in standard form contracts to apply to small trade contracts. The bill also strengthens the ability of consumers to require uninvited direct sellers to leave or not enter their property.

Unfair practices include such as the use of pressure tactics, deception, one-sided contracts and practices that generally exploit a consumer’s or small business’s vulnerabilities and prevent markets from functioning effectively by decreasing trust, increasing search and transaction costs and skewing the playing field in favour of businesses that act dishonestly.

After consultation undertaken by the MBIE it was found that there were gaps in the current legislative protections against unfair practices.

Clause 6 inserts new sections 7 and 8 to prohibit unconscionable conduct in trade. This is conduct that is serious misconduct that goes far beyond being commercially necessary or appropriate.

It is an offence under section 40 (1) to contravene the prohibition on unconscionable conduct in trade, subject to a maximum fine of $600,000 for a body corporate and $200,000 for an individual.

Clause 7inserts new sections 26B to 26E, which address unfair terms in contracts between businesses.

Clause 26B extends existing protections against unfair contract terms in standard form consumer contracts to also apply to small trade contracts (with an actual or expected total value of less than $250,000 in any 12-month period).

Clause 9 strengthens the ability of consumers to require uninvited direct sellers to leave or not enter their property, including through the use of generally worded written notices.

Clause 10 amends section 36U, giving a warrantor under an extended warranty agreement entered into by telephone 5 working days to provide the consumer with a copy of the agreement (previously immediately).

Clause 14 amends section 46C, (management banning orders). Section 46C currently covers cases where a person has committed offences twice personally, or has been a director of, or involved in managing, a single body that has offended twice, but it does not cover cases where one offence has been committed by the person and the other by the body, or where the offences have been committed by 2 different bodies that the person has been involved with. The amendment closes that gap.

Clauses 15 to 19 extend the sections relating to the process for a court to declare a term in a standard form contract is unfair. The sections will now also apply to small trade contracts.

Sections 10, 11, 13, 14, and 20 will come into force on the day after Royal assent. The rest of the Act comes into force on the first anniversary of the date of Royal assent.

Bill introduced to repeal part 4 of the Public Health and Disability Act

The New Zealand Public Health and Disability Amendment Bill was introduced on 21 January 2020. Associate Minister for Health Jenny Salesa is in charge of the bill.

Clause 4 of the bill repeals part 4 of the New Zealand Public Health and Disability Act 2000. This part is the framework for funded family care policies, which allows the Crown and district health boards to have family care policies to pay resident family members to provide personal care and household management support to their eligible ill or disabled family members. Part 4A allows the exclusion of certain resident family members from being paid for providing funded family care and support services and prohibits claims to the Human Rights Commission about family care policies.

The repeal of Part 4A will remove the discriminatory elements of the current legislation and will allow the Crown and district health boards to continue to implement lawful family care policies.

It will enable future complaints about the policies to be made to the Human Rights Commission.

It will also allow the Human Rights Review Tribunal and courts to hear complaints.

If passed the Act will commence on 1 September 2020.

Last updated on the 23rd January 2020