THE

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LETTER
A weekly review of administration, legislation & law
ELECTION 2017 Electoral law rules are always of intense interest to political parties
INQUIRY: A FRAUGHT but this election cycle's select committee inquiry into the previous
AFFAIR election has been more fraught than usual. The Justice Committee's
Inquiry into 2017 General Election and 2016 Local Elections (I.7A,
- 17 December 2019 December 2019, 78 pp) has finally been released nearly 18 months after
the inquiry was initiated. However, the opposition National party
members' protest at the conduct of the inquiry and comment that "[O]ur
electoral laws should not be changed to advantage the governing
parties", is part of the political game. The main parties have always
fiercely contested matters such as the timing of closing of electoral
rolls (on the apparent assumption that more conservative voters are
better organised and won't leave it to the last moment). Nowadays
though, there is a lot more to worry about than placing polling booths
in shopping malls and supermarkets to catch the stragglers. This is the
era of "fake news" and foreign interference in elections.

The report notes the features of the 2017 election of slightly increased
voter turnout (79.8%) than in 2014, more advanced voting (47% compared
with 29% and the Electoral Commission predicting this will grow to 60%
in 2020), more special votes (17% of total vote compared with 13.5%)
and, of course, the increasing use of social media. Some issues
discussed overlap with the Electoral Amendment Bill, introduced mid-year
(42 TCL 29/9), that would, among other things, allow NZ-based electors
to enrol and vote on election day, and remove the prohibition on
premises used for the sale of liquor to be used as polling places.
National party committee members say they were not told that a trade-off
had been made between allowing same-day enrolment and voting at the
expense of extending the timeframe for declaration of the election
result by 10 days ("deliberate and sneaky" and the bill "undermined and
made a mockery of the inquiry and long-established cross-party
process").

The recommendation by Government members of the committee to extend the

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offence of publishing false statements to influence voters on election
day or two days prior, to two days before advance voting begins was
opposed by National members. They note that the provision's purpose is
to stop scandalous claims being made in the last moments before an
election and come with a very high penalty. There will, they say
(perhaps unwisely) be different views on whether National's claims in
the Election 2017 of a $12 billion fiscal hole was a false statement.
Such statements are, they insist, best contested in the context of
freedom of expression. National members also object to the majority
recommendation that the Government require online platforms to keep a
public, searchable register of published general and local election
advertisements targeting New Zealanders. They believe that advertising
during elections in different formats should not have different rules.
Other areas of objection include proposals to remove the ban on election
day advertising; to make the Maori Electoral Option more frequent and
develop a Maori voting strategy; and to collect information about
voter ethnicity on the enrolment form.
The other main part of the report, apart from that on the 2016 Local
Elections, is dedicated to "how to protect New Zealand's democracy from
inappropriate foreign interference". But more on that another time. This
is the last TCL for this year and we wish you all a happy festive
season.
42 TCL 48 (2000)
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THE COURTS LETTER

CRIMES In I (CA128/2018) v R [2019] NZCA 625 per Kōs P, Venning and Thomas JJ
- TRIAL COUNSEL (9/12/2019) I appealed unsuccessfully from 13 convictions for sexual
COMPETENCE offending against 4 girls related to him and aged between 5 and 11 years
- DEFICIENCIES IN at the time, alleging trial counsel errors relating to cross-examination
CLIENT SERVICE BUT of the complainants, failing to provide disclosure to I, and take
OVERALL "A GOOD instructions and properly prepare for trial. The CA considered that
JOB" trial counsel response to the appeal "was less than satisfactory in many
respects. He did not have a good memory of the file and it did not
appear that he had refreshed his memory prior to giving evidence. He did
not bring his full file to Court and have file notes. However, any
deficiencies in client service did not result in a miscarriage of
justice. Indeed, the fact the jury acquitted or were hung on a number of
charges pointed in the opposite direction. In the CA's assessment,
counsel "did a good job in the face of a compelling Crown case". The
other grounds of failure to advise I on his election, prepare him to
give evidence and engage a communications assistant (I, dyslexic) were
rejected. (142 paras) NB: Publication restrictions

EDUCATION In TEACHER Y v EDUCATION COUNCIL OF AOTEAROA NEW ZEALAND [2019] NZCA 637
- TEACHER DISCIPLINE per French, Gilbert and Collins JJ (11/12/2019) the CA dismissed Y's
- STUDENT'S PARENTAL appeal. The matter arose from a complaint by student A's parents to Y
COMPLAINT NOT (head teacher) about a relationship between A and teacher M which they
ESCALATED considered had elements of grooming. Y instructed a "restorative
justice" approach to the matter plus mediation and did not advise A's
parents that they had the option of complaining to the School Board of
Trustees (they thought their only option to Y's preference was the
Police, whom they did not want to involve). No independent investigation
of the complaint took place. The parents complained to the BoT a year
later. Y's handling of the matter became the subject of a disciplinary
investigation. The NZ Teachers Disciplinary Tribunal found that Y's
handling of the matter was serious misconduct (Education Act 1987, s
139AB). Y's appeal to the DC was dismissed. The CA granted leave to
appeal directly to it ([2018] NZCA 230, 41 TCL 37/4). The CA held that,
while Y had to power to deal with a situation the way Y did, Y's
decision was one that "no reasonably competent principal equipped with
the information she had and with a primary obligation to the welfare of
her student could have reached". The information showed that M's
statement of events was "demonstrably false" and A's parents had very
good reasons to suspect grooming. Aggravating factors were: failing to
advise A's parents of their options, failing to hold an independent
investigation (contrary to human resources advice), and misleading the
BoT. The judgment is especially noteworthy for (1) the CA's refusal to
read down NZTC (Making Reports and Complaints Rules), r 9(1)(o) ("any
act or omission that brings or is likely to bring, discredit to the
profession") which is imported into s 139AB(b), to involve criminal
conduct or misfeasance which was argued to be the genus of the 14
preceding paragraphs in r 9(1) (para (o) "must" mean what it says as a
catch-all provision "recognising the fact that it was impossible to
characterise or capture by specific wording all forms of misconduct"),
and (2) Cole v Nursing Council [2017] NZHC 1178 should not be imported
into the Teachers Disciplinary Regime to limit r 9(1)(o). There was an
implied doubt of the correctness of Cole in the CA's ("if correct, which
counsel disputed"). (78 paras)

EVIDENCE In J (CA539/2019) v R [2019] NZCA 624, 5/12/2019, Gilbert, Dobson and

- SEXUAL EXPERIENCE Whata JJ (5/12/2019) J, facing charges of alleged sexual offending
OF COMPLAINANTS against three young family members (8-11 years) appealed successfully
- UNRELATED SEXUAL from a pre-trial ruling refusing him permission under the Evidence Act
ACTIVITY BETWEEN 2006, s 44 (sexual experience of complainants) to have evidence of
CHILDREN IN THE unrelated sexual activity between the children in J's family (referred
FAMILY to by one complainant (S) in her evidential video interview) adduced at
trial. The CA held that the rationale for inclusion of sexual experience
knowledge in cases concerning child complainants identified in Morrice v
R [2008] NZCA 261, 31 TCL 32/5, was engaged here. S's description of the
complainants' previous sexual experience provided a cogent basis for J
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to rebut an inference that they must be telling the truth, because they
would not have sufficient knowledge of sexual activity to describe the
abuse unless it occurred. The sexual experience described is
sufficiently like the alleged offending to enable the required linkage
to a relevant issue. Furthermore, J will be raising collusion as a
defence and exclusion would raise the prospect of an unfairly truncated
narrative. (39 paras) NB: Publication restrictions

FAMILY VIOLENCE In N v S [2019] NZHC 2905 per Gendall J (7/11/2019) the HC overturned
- PROTECTION ORDER the FC decision that made a final protection order in favour of S. The
- "NECESSARY" FC erred in finding a final order "necessary" (Surrey v Surrey [2008]
- ASSESSMENT OF NZCA 565, 32 TCL 31/2 and Q v Q [2012] NZHC 1448). Insufficient weight
SUBJECTIVE BELIEF had been given to the countervailing factors demonstrated by N and too
AND COUNTERVAILING much emphasis given to S's subjective perception of risk, especially
FACTORS where she had overstated the true position. The reasonableness of S's
- DISCHARGE OF FINAL subjective belief should have been reassessed after taking into account
ORDER SUBJECT TO the countervailing factors. The final order was not to be discharged
UNDERTAKING until a firm undertaking had been given by N to provide for the ongoing
protection of S. (62 paras)

IMMIGRATION In H v MINISTER OF IMMIGRATION [2019] NZHC 2870 per Paul Davison J

- RESIDENCE (5/11/2019) the HC dismissed H's application for judicial review of the
- INSTRUCTIONS INZ refusal of a residence permit (H had earlier applied for refugee
- VALIDITY status) on the ground of failing the good character test because INZ was
- GOOD CHARACTER not "satisfied beyond doubt" that any involvement H had in the entity
- INVOLVEMENT IN engaged in crimes against humanity or in such crimes was "minimal or
CRIMES AGAINST remote" (Immigration Instructions, A5.30 and A5.30.1). H's four
HUMANITY submissions that the two instructions were invalid for uncertainty and
- ONUS, STANDARD OF reversal of the onus of proof failed. (1) A5.30(a) did impose a test of
PROOF character of H himself: (a) Immigration Instructions are to be construed
- JUDICIAL REVIEW according to the purpose of the policy and the natural meaning of the
language and not with the same strictness that would be employed in
respect of statutes or statutory instruments (Patel (Kishorbi) [1997]
NZAR 264 (CA) followed), (b) the test in r A5.30(a) excluding persons
who "pose a risk to [NZ's] international reputation" was about the
personal character of the applicant once the instruction was read as a
whole (a person's involvement with such organisations or actions did
reflect on their individual character; exclusion of an applicant's
connection with persons in NZ from consideration did not instruct
officers to ignore the applicant's character). (2) There was nothing in
the Immigration Act 2009 that prevented including deeming provisions
such as in A5.30(b) ("applicants are considered to pose a threat ... if
they have or have had an association with ... any ... group ... that has
advocated or committed ... crimes against humanity ..."; that was
the prima facie position only). Nor was A5.30(b) unreasonable,
disproportionate or unfair. (3) A5.30(b) neither reversed the onus of
proof nor stated a standard of proof: (a) the concept of onus of proof
was inapt in administrative decision-making contexts (AL v IPT [2014]
NZHC 1810, 37 TCL 33/5 adopted), as was (b) the concept of standard of
proof (Jiao v RSAA [2003] NZAR 647 (CA), 26 TCL 30/4 applied). (4) A5.30
did not deny to H as an applicant for refugee status the rights under
the UN Refugee Convention (CF (No 2) [2016] NZHC 3159, [2015] NZAR 154,
adopted). (97 paras)

JUDICIAL REVIEW In N v DISTRICT COURT AT GISBORNE [2019] NZHC 2744 per Mallon J
PROCEDURE (25/10/2019, reissued 1/11/2019) N, an experienced criminal defence
- JUDGE'S "ABUSE OF lawyer practising in the Gisborne region succeeded in her application
PROCESS AND for judicial review of the decision of the Executive DCJ initiating an
CONTEMPT INQUIRY" "abuse of process and contempt inquiry", following concerns that N had
INTO ACTIONS OF misled him about the status of a bail application. N had been assigned
CRIMINAL LAWYER to act for a defendant on legal aid on two firearms charges for which he
- JURISDICTION was on bail at the time. He subsequently appeared on two charges and was
EXCEEDED remanded in custody (Police opposing bail). When N filed a bail
application the Registry raised with the DCJ its concern about the
accuracy of representations made by N in relation to that bail hearing.
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The HC discussed at length the law of abuse of process (Seimer v AG

[2013] NZSC 68 cited) and contempt powers in relation to the District
Court and the role of the regulatory regime under the Lawyers and
Conveyancers Act 2006 in dealing with complaints against lawyers. The HC
concluded that "the purpose of the implied power to control an abuse of
process is to enable action to be taken in the proceeding in which the
alleged abuse has occurred. If the matter of concern to the Court does
not impact upon the conduct of the proceeding, relying on an implied
power to act effectively and uphold the administration of justice to
conduct a summary abuse of process inquiry is not appropriate. Other
avenues for responding to the matter are available." Further, if the
matter of concern involves disputed facts, a summary process conducted
by the Court may not be appropriate; there needing to be notice to the
lawyer and an opportunity to call evidence etc. If the intention is to
consider punishing the lawyer's conduct, the statutory contempt
jurisdiction in the DC may be available but the lawyer is entitled to a
fair hearing. Applying this to the facts here, the HC held that N's
conduct was not appropriately dealt with by way of an abuse of process
inquiry as the Judge had intended. It agreed that a possible
misrepresentation by defence counsel in the context of a case management
discussion with the Bench "does not sit comfortably within [the]
criminal law conception of an abuse of process." Moreover, on the
evidence, it was not clear to the HC that N had misrepresented the
position in any material way. With "respect to the experienced and busy
Judge, his concerns [seemed] to be 'pin pricking' on matters of
immaterial detail arising from the applicant's necessarily imprecise
expression" when she appeared before him and in her memorandum to him.
If the Judge remained concerned, the appropriate process was a complaint
for the consideration of a Standards Committee. The HC was also
satisfied that the Judge's concerns here could not constitute contempt.
By the time he had indicated "possible contempt issues", the "whole
matter had gone well off course and the applicant was right to have
concerns about how matters were unfolding." The Judge's directions were
set aside and a direction made that the inquiry is at an end. (97 paras)

JUDICIAL REVIEW In A v MINISTER OF INTERNAL AFFAIRS [2019] NZHC 2992 per Dobson J
- STRIKING OUT (15/11/2019), a further judgment (see, previously, [2017] NZHC 746;
- DELAY [2018] NZHC 1328, 41 TCL 21/1; [2018] NZHC 1797; [2018] NZHC
(SELF-REPRESENTED 2890), the first proceeding involving closed court hearings, the HC
APPLICANT) refused the MoIA's application to strike out A's proceeding for failure
- CHANGE OF to advance it in the preceding 11 months. The HC noted that judicial
CIRCUMSTANCES review applications were "intended to be relatively confined assessments
- MOOTNESS, of the lawfulness of the exercise of statutory powers ... [and] expected
UNLIKELIHOOD OF to be determined expeditiously", so that a delay of 11 months would be
REMEDY vulnerable to strike out if the applicant were legally represented.
- PROCEDURE Here, the delay was not inexcusable for a self-represented litigant: a
- INTERROGATORIES close family member had died, A now had primary responsibility for
another close family member who required ongoing care and support for
health reasons, and family organisational burdens now fell on A.
Further, the proceeding raised novel issues which accounted for some of
the delay, and delay had caused no "serious" prejudice to the MoIA. The
HC also refused to strike out the proceeding on the basis of mootness
arising from a change of circumstances that, the MoIA submitted, removed
any likelihood that A would be granted a remedy, even if A succeeded on
the substance (MoIA submitted that (a) NZSIS may no longer take the
points leading to suspension of A's passport if a new one were applied
for and (b) the case was special to its facts). The HC accepted the
submission that the judgment in the case would probably be a public one
with CSI information being placed in a secret schedule, so that a
judgment would have precedential value and a remedy could not be ruled
out. (50 paras)

LAWYERS AND In ERWOOD v HOLMES [2019] NZHC 2963 per Palmer J (14/11/2019) E failed
CONVEYANCERS in his formal proof hearing (lawyers H, B and M having given up spending
- BREACH OF time and money on opposing E's multiple claims against his lawyers - 11
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INSTRUCTIONS noted in the judgment) for damages for B's claimed breach of E's
- TO REMOVE instructions by not applying for M to be removed as E's litigation
LITIGATION GUARDIAN guardian before a settlement conference in which a matter was settled by
- DAMAGES M (E claimed that had he attended the settlement would have been
- FORMAL PROOF substantially more favourable to him). The HC held that B had breached
E's instructions but that (1) it was doubtful whether such an
application would have succeeded had it been made (E's history of
repeatedly and varyingly asserting that he was or was not mentally
disordered, noted), and (2) there was nothing that suggested that a more
favourable result would have been achieved by E. (43 paras)

LOCAL GOVERNMENT In SOROKA v WAIKATO DISTRICT COUNCIL [2019] NZHC 2940 per Smith AJ
- REORGANISATION (11/11/2019) there had been conservation lots within S's land when that
- SUBDIVISION AND land was within Franklin DC. A plan change allowing those lots to be
SALE transferred to another owner was made but the provisions of the plan
- TRANSFERS INTO TWO change on subdivision were still under appeal when portions of FDC
OTHER LOCAL became part of AC and other portions became part of WDC. S had proposed
AUTHORITY AREAS to subdivide with some of the conservation lots being transferred to
- PROCEDURE ownership within AC and others within WDC. These were approved in a
- JOINDER joint AC/WDC decision. S then proposed to transfer some more
- OTHER LOCAL conservation lots. It applied for certain declarations under the
AUTHORITY Declaratory Judgments Act 1908 and, in another proceeding, for damages.
All the land concerned was within WDC. The HC has dismissed WDC's
applications to join AC in the proceedings. The first limb of r
4.56(1)(b) did not apply to the DJA proceeding as any receiving property
of a proposed transfer was within WDC's territory (S could not have sued
AC in respect of those transfers, not could AC have owed any duty to A;
since the plan change became operative "cross-border" transfer of
conservation lots was prohibited). The second limb was not satisfied,
either: the earlier joint process was a matter of administrative
convenience given cross-border transfers and did not affect the
responsibilities of either AC or WDC. The judgment may be noted for its
discussion of the authorities on joinder (including adoption of
"McGechan on Procedure" HR4.56.12). (103 paras)

PROCEDURE In SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED v ROSS [2019] NZSC 140
- REPRESENTATIVE per Glazebrook, O'Regan and Ellen France JJ (9/12/2019), proceedings
ACTION involving a representative claim by earthquake damage claimants against
- OPT IN OR OPT OUT Southern Response, the SC granted SR leave to appeal the CA decision
BASIS [2019] NZCA 431, 42 TCL 36/1, overturning the HC ruling that the
- LEAVE GRANTED TO representative claim should be brought on an opt in rather than opt out
APPEAL basis. As the appeal will raise questions about the principles
applicable to deciding whether representative claims proceed on an opt
in or opt out basis, the NZ Law Society and Bar Association were invited
to intervene if they wish. (1 para)

PROCEDURE In SUVEINAKAMA v COUNCIL OF THE ONGOING GOVERNMENT OF TOKELAU [2019]

- COSTS NZHC 2974 per Churchman J (14/11/2019), the costs judgment on [2019]
- TOKELAU NZHC 1787, 42 TCL 33/7, the HC reduced the costs awarded to the
- EMPLOYMENT Administrator of Tokelau to $5,000 because (1) a number of the issues
- SUSPENSION arising in the proceeding itself and the three interlocutory
applications that the AoT participated in were novel, (2) there was
"some" merit in "some" of the applications and "some" public benefit in
clarifying aspects of the law of Tokelau, (3) the AoT had "at least
encouraged" suspending S, which was held to have been unlawful, and (4)
S was impecunious. (45 paras)

PROCEDURE EASTON v ATTORNEY-GENERAL [2019] NZHC 2910 per Doogue J (7/11/2019), an

- PLEADING unsuccessful application by a self-represented applicant for (1)judicial
- WISHFUL THINKING ON review of the claimed failure of the "Registry arm of the [MoJ]" to
STATUS instruct counsel to appear should E be prosecuted over his fines and (2)
mandamus requiring the Crown "to remedy allegations of corruption", may
be noted for E's pleading of his status as having been "self-appointed
'under potential authority within a jurisdiction of section 1 of the
Letters Patent constituting the Office of the Governor-General of New
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Zealand'". (18 paras) E's claim probably wins in competition with a

self-represented litigant in the 1990s who pleaded he was the
"Director-General of Post and Telegraph". His position was that he had
been employed by the Department when it existed but had been unlawfully
dismissed so that, when all employees ceased employment when the
Department was replaced by NZ Post, he was the last remaining employee
and so must be the D-G. (18 paras)

PROTECTION OF In FLAVELL v CAMPBELL [2019] NZHC 2993 per Moore J (18/11/2019), the HC
PERSONAL AND identified an anomaly arising out of Parliament's use of the word
PROPERTY RIGHTS "court" in the Protection of Personal and Property Rights Act 1988, ss
- COURT APPOINTED 65 and 65B, which meant that the FC (either a Registrar or FCJ) was
COUNSEL required to assess the reasonableness of costs of court appointed
- ASSESSMENT OF COSTS counsel in appellate proceedings in the HC in which the FC was not
- ANOMALY WITH involved. "[I]t appears curious that it is not the Judge, or even the
STATUTORY WORDING Court, best placed to assess the conduct and merits of the appeal that
is required to make that assessment". (29 paras)
NB: Publication restrictions

PUBLIC SAFETY (PUBLIC In DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v

- PROTECTION ORDERS) MCCORKINDALE [2019] NZHC 2771 per Dunningham J (30/10/2019) the
- SUSPENSION OF applicant sought a Public Protection Order (PPO) under the Public Safety
INTERIM DETENTION (Public Protection Orders) Act 2014 in respect of M, currently subject
ORDER to an interim detention order (IDO) and housed in a purpose built
- NO JURISDICTION residence within Christchurch Men's Prison. M is acknowledged to be at
very high risk of serious sexual offending but since release from prison
has not re-offended, having been managed successfully in the community
under Extended Supervision Orders under the Parole Act with 24 hour
monitoring. A 2014 amendment to the ESO regime means a person can only
be required to submit to such monitoring for a maximum of 12 months and
M sought suspension of the IDO under s 107(3) of the Public Safety Act
so he can return to the previous ESO regime. The HC held that there is
no jurisdiction to use the suspension power in this way (directly
contrary to the majority view in the SC decision in Chisnall [2017] NZSC
114). If intensive monitoring is required it can only be imposed through
an IDO or PPO made under the Public Safety Act. (35 paras)
NB: Publication restrictions

SENTENCING In E D v THE QUEEN [2019] NZHC 2857 per Katz J (4/11/2019) ED appealed
- DISCHARGE WITHOUT successfully from DC refusal to grant D a discharge without conviction,
CONVICTION Sentencing Act 2002, s 107, after her guilty plea to one charge of
- ASSAULT OF SON assaulting her 9 year old son (ED had been ordered to come up for
- CAREER CONSEQUENCES sentence if called upon within 12 months). The HC noted that the
OUT OF ALL offending was out of character - anger about access issues with the
PROPORTION TO child's father had led her to take it out on the son; no weapon was used
OFFENDING and no physical injury resulted. The offending was in the low to
moderate range and the consequences of conviction will be very serious
in terms of D's career, involving travel to Australia and out of all
proportion to the offending. (27 paras) NB:Publication restrictions

TRUSTEE In FARMERS TRADING CO LTD v PERSONS DIRECTED TO BE SERVED [2019] NZHC

- RESULTING, IMPLIED, 2987 per Walker J (15/11/2019) a trust for employees established in 1927
CONSTRUCTIVE TRUSTS by the founder of Farmers had risked breaching the Perpetuities Act
- PERPETUITIES 1964. A HC interim judgment in 1995 had provided for an incorporated
- RECONSTITUTION OF society to be established a year before the perpetuity period ended and
TRUST AS the Trust disestablished the day before that period ended. For a reason
INCORPORATED now unknown, the society was not established but Farmers continued
SOCIETY administering the Trust as if it were still valid. A proceeding was
- RECTIFICATION brought by FTC under pt 18 to seek legalising the continuing "trust" by
PROCEEDING vesting its current assets in LBMEC Inc which it had had incorporated
- STATUTORY, INHERENT with objects "largely" mirroring those of the projected incorporated
JURISDICTION society in the 1995 judgment and that FTC be relieved of any liability
- EQUITY for omission of establishing the society at the time directed by the
- MAXIMS 1995 judgment. The HC made directions under Trustee Act 1956, s 66, that
all living descendants of the settlor and all current employees be
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LEGISLATION LETTER

Last week in the House the following bills were introduced: Films,
Videos, and Publications Classification (Commercial Video on-Demand)
Amendment, Financial Markets (Conduct of Institutions) Amendment,
Infrastructure Funding and Financing, Insurance (Prompt Settlement of
Claims for Uninhabitable Residential Property), Secondary Legislation,
Social Security (Exemption for Ex Gratia and Compensation Payments)
Amendment, and Taumata Arowai - the Water Services Regulator. The
interim report on the Arms Legislation Bill was reported back from
select committee and the following bills were referred to select
committees: Holidays (Bereavement Leave for Miscarriage) Amendment (No
2), Protection for First Responders and Prison Officers, Racing Industry
and Urban Development. The Electoral (Entrenchment of Maori Seats)
Amendment Bill was defeated on its second reading. The house in
committee stage of the following bills was completed: Credit Contracts
Legislation Amendment, Education (Pastoral Care) Amendment, Election
Access Fund, Maritime Transport (Offshore installations) Amendment,
Remuneration Authority (Members of Parliament Remuneration) Amendment
(No 2), Terrorism Suppression (Control Orders), and Venture Capital
Fund. The following bills were read a third time: Credit Contracts
Legislation Amendment, Dog Control (Category 1 Offences) Amendment,
Education (Pastoral Care) Amendment, Farm Debt Mediation (No 2),
Maritime Transport (Offshore Installations) Amendment, National Animal
Identification and Tracing Amendment (No 2) and Terrorism Suppression
(Control Orders).

ASSENTS The following bills were assented to on 6/12/2019:

71 REFERENDUMS FRAMEWORK 2019. Commenced on 7/12/2019.
72 ELECTORAL AMENDMENT ACT 2019. Commences on 1/1/2020, except for
provisions relating to the meaning of "party secretary" that commence on
1/4/2020.

NEW BILL The FILMS, VIDEOS, AND PUBLICATIONS CLASSIFICATION (COMMERCIAL VIDEO
- FILMS, VIDEOS, AND ON-DEMAND) AMENDMENT BILL (Government bill, 16 clauses, introduced on
PUBLICATIONS 10/12/2019) aims to implement its policy of reducing the potential for
CLASSIFICATION harm to consumers from viewing inappropriate content by requiring
(COMMERCIAL VIDEO specified commercial video-on-demand (CVoD) providers to label content
ON-DEMAND) before it is available in NZ. At present there are inconsistent ratings
AMENDMENT and descriptive notes (or no ratings at all) due to a gap in current
legislation where on-demand online content in NZ is not subject to
mandatory rating requirements, as films for cinematic or DVD release
are.Providers of CVoD content will be required to follow the current
process for the labelling of a film, that involve providing content to
the Film and Video Labelling Body for rating and labelling. Providers
that are required to comply under the new requirements will be listed in
a schedule of the Act. The bill will also update the functions of the
Classification Office to ensure the new requirements for CVoD content
are clearly within the scope of its operational work.

NEW BILL The FINANCIAL MARKETS (CONDUCT OF INSTITUTIONS) AMENDMENT BILL

- FINANCIAL MARKETS (Government bill, 21 clauses, introduced on 11/12/2019) would create a
(CONDUCT OF new regulatory regime for the general conduct of financial institutions
INSTITUTIONS) and their intermediaries. "The regime has been designed in response to
AMENDMENT recent reviews that have identified that certain institutions,
particularly banks and life insurers, lack focus on good outcomes for
customers and have ineffective systems and controls to identify, manage,
and remedy conduct issues." Financial institutions in the business of
providing relevant services would be required to obtain a licence under
Part 6 of the Financial Markets Act 2013 and require financial
institutions and intermediaries to comply with a fair conduct principle
to treat consumers fairly, including by paying due regard to their
interests and to implement, and maintain an effective fair conduct
programme.

NEW BILL The INFRASTRUCTURE FUNDING AND FINANCING BILL (Government bill, 155
- INFRASTRUCTURE clauses, introduced on 12/12/2019) is an omnibus bill amending more than
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FUNDING AND one Act to implement the single broad policy of providing an alternative
FINANCING funding and financing model to support the provision of infrastructure
for housing and urban development that supports functioning urban land
markets and reduces the impact of local authority financing and funding
constraints. At the core of the Model is a multi-year levy paid by
beneficiaries of infrastructure projects to a Special Purpose Vehicle
(SPV). The person liable to pay the rates on a property is the person
liable to pay the levy and it will be collected by the responsible
territorial authority. An SPV would service the finance raised to cover
the costs of the infrastructure via the levy and is responsible for both
financing and construction of the infrastructure assets. Once
constructed the infrastructure will vest in the relevant local authority
or public body.

NEW BILL The INSURANCE (PROMPT SETTLEMENT OF CLAIMS FOR UNINHABITABLE RESIDENTIAL
- INSURANCE (PROMPT PROPERTY) BILL (Member's bill, Stuart Smith, N - Kaikoura, 12 clauses,
SETTLEMENT OF introduced on 12/12/2019) would provide a legal framework and parameters
CLAIMS FOR for when insurance companies must act by; an opportunity for the time
UNINHABITABLE frame to be extended in extreme circumstances at the Minister's
RESIDENTIAL discretion; and a faster response and resolution for claimants with
PROPERTY) resulting less stress and emotional burden.

NEW BILL The SECONDARY LEGISLATION BILL (Government bill, 6 clauses, introduced
- SECONDARY on 10/12/2019) would improve and support the law relating to the making
LEGISLATION of secondary legislation by applying and adjusting the framework of
access to, and Parliamentary oversight of, secondary legislation
provided for in the Legislation Act 2019. "The new Legislation Act
establishes a single category of secondary legislation to replace the
current, complicated definitions of legislative instruments and
disallowable instruments in the Legislation Act 2012", making it easier
for users to access and to help Parliament oversee secondary
legislation. The bill responds to recomemndations of the Regulations
Review Committee's 2014 Inquiry into the oversight of disallowable
instruments that are not legislative instruments.

NEW BILL The SOCIAL SECURITY (EXEMPTION FOR EX GRATIA AND COMPENSATION PAYMENTS)
- SOCIAL SECURITY AMENDMENT BILL (Member's Bill, Willow-Jean Prime, L- List, 5 clauses,
(EXEMPTION FOR EX introduced on 12/12/2019) would correct the unintended consequence that
GRATIA AND ex gratia payments received by persons who have been subject to abuse
COMPENSATION while in State care and compensatory payments for the consequences of
PAYMENTS) AMENDMENT incorrect State action are, under current legislation, required to be
spent within 1 year, or they will be counted as income and cash benefits
for the purpose of receiving a primary or supplementary benefit.

NEW BILL The TAUMATA AROWAI - THE WATER SERVICES REGULATOR BILL (Government bill,
- TAUMATA AROWAI THE 20 clauses, introduced on 11/12/2019) would implement the Government's
WATER SERVICES decision to create a new regulatory body to oversee, administer, and
REGULATOR enforce the drinking water regulatory system. The bill is part of a
broader package of reforms to the three waters regulatory system,
intended to address issues and opportunities highlighted in the
Government Inquiry into Havelock North Drinking Water and in the
Government's Three Waters Review. Taumata Arowai would be established as
a Crown agent and a Maori Advisory Group would be established to advise
Taumata Arowai on Maori interests and knowledge.

HOUSE IN COMMITTEE The CREDIT CONTRACTS LEGISLATION AMENDMENT BILL was amended in the
- CREDIT CONTRACTS Committee of the whole House by Supplementary Order Paper No 412, in
LEGISLATION relation to the enforcement of guarantees given guarantors in respect of
AMENDMENT consumer credit contracts.

HOUSE IN COMMITTEE The MARITIME TRANSPORT (OFFSHORE INSTALLATIONS) AMENDMENT BILL was
- MARITIME TRANSPORT amended in the Committee of the whole House by Supplementary Order Paper
(OFFSHORE No 417, to insert a power to make certain transitional provisions in the
INSTALLATIONS) marine protection rules made under the Maritime Transport Act 1994 for
AMENDMENT the purpose of implementing the bill.
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HOUSE IN COMMITTEE The TERRORISM SUPPRESSION (CONTROL ORDERS) BILL was amended in the
- TERRORISM Committee of the whole House by Supplementary Order Paper No 415, to
SUPPRESSION require the court to have regard to specified aspects of evidence relied
(CONTROL ORDERS) on; make it clear the court may make a control order only if satisfied
the relevant person poses a real risk of engaging in terrorism related
activities; require an application for an interim control order to
be made, and heard and determined by the court without notice to the
relevant person if the application is made before that person's arrival
in NZ unless the Commissioner believes on reasonable grounds that it is
not necessary or appropriate; enable the court to vary or discharge
a control order (whether interim or final) or its requirements both on
its own initiative, after notifying the Commissioner and the relevant
person giving them a reasonable opportunity to make submissions;
specify additional requirements for decisions that supporting
information is not disclosable, including that the court appoint a
special advocate to act in the interests of the relevant person; so
that legal aid for control order proceedings is more accessible than it
is for standard civil proceedings; and require a review of the new
Act as soon as practicable after the second anniversary of its
commencement.

HOUSE IN COMMITTEE The VENTURE CAPITAL FUND BILL was amended by supplementary order papers
- VENTURE CAPITAL (i) No 414, to divide the bill into two bills: the New Zealand
FUND Superannuation and Retirement Income Amendment, and the Venture Capital
Fund, and (ii) No 416, to clariy that Venture Capital Fund money is not
public money for the purpose of the Public Finance Act 1989.

SELECT COMMITTEES As at 16/12/2019, there remained time for submissions to be made on the
- BILL SUBMISSION following bills before select committees: Climate Change Response
DATES (Emissions Trading Reform) Amendment, 17/1/2020, Public Service
Legislation, Sexual Violence Legislation, 31/1/2020, International
Crimes and International Criminal Court Amendment, 7/2/2020, Asia
Pacific Economic Co-operation (APEC 2021), 12/2/2020, Education and
Training, 14/2/2019.

COURTS (CONTINUED)
served. The HC has now made substantive orders to achieve the objects of
FTC's rectification actions. When the perpetuities period expired, the
Trust's assets became held by FTC on a resulting trust for the benefit
of the settlor's surviving family members. By continuing to pay benefits
to employees FTC breached that trust but this was inadvertent and was in
fact of "no material [monetary] consequence." The HC left open whether a
resulting trust was an implied or constructive trust in terms of Trustee
Act 1956, s 2, instead holding that, on a purposive interpretation, FTC
had standing to seek those directions under Trustee Act 1956 or,
alternatively, in the inherent jurisdiction of the HC (NZMC v Foulkes
[2014] NZHC 1777, 37 TCL 29/1). The directions sought by FTC were also
granted based on the maxim "equity regards as done that which ought to
be done". The HC made an order (Trustee Act 1956, s 73) relieving FTC of
liability for its breach of trust. (34 paras)

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AGRICULTURE The Primary Sector Council's vision for the country's food and fibre
- PRIMARY SECTOR sector, Fit for a Better World. has been released. "The international
COUNCIL consumers who buy our world-class product increasingly want to know the
- VISION REPORT story behind their food. They want to know it's climate friendly and
sustainably produced, with high animal welfare standards and by a
workforce that's treated with respect and paid fairly. By using Fit for
a Better World as our guide, I'm confident we'll achieve premiums in the
marketplace from consumers seeking out our food and produce." The
council's final report and recommendations are expected in March 2020.
(Agriculture Minister Damien O'Connor, media release, 12/12/2019.)

CRIMINAL JUSTICE The Government has released two reports, Turuki! Turuki! from Te Uepū
- FRESH APPROACH Hāpai I te Ora, and Te Tangi o te Manawanui: Recommendations for Reform
- GOVERNMENT RESPONSE from the Chief Victims Advisor, that both recommend a fresh approach to
TO TWO REPORTS the way criminal justice has been approached. The "government is
announcing a new direction for criminal justice reform, with an
immediate commitment to doing justice differently. The old ways have
failed us. They have resulted in too little rehabilitation and therefore
more crime, while not doing enough to support victims." As a first step
to respond to the reports' recommendations, the government has committed
to: ensuring the environment in which justice is administered is safe
and effective for victims, offenders, and all participants;
comprehensive system change over time that treats victims with respect
and dignity, treats offenders more effectively in order to reduce
offending, and makes the system more responsive to community
expectations of accountability and harm prevention; make the pilot
Alcohol and Other Drug Treatment (AODT) courts in Auckland and Waitakere
permanent immediately, and to immediately fund a new AODT court in
Hamilton because of the impact these courts have on reducing offending
(within two years, AODT Court participants are 23% less likely to
reoffend for any offence, 35% less likely to reoffend for a serious
offence, and 25% less likely to be imprisoned because of their
reoffending); the rollout of other therapeutic and specialist courts
over time Working with Māori on decision-making to improve outcomes
across the justice system. (Justice Minister Andrew Little, media
release, 12/12/2019.)

DEFENCE A Defence Climate Change Implementation Work Plan, titled Responding to

- CLIMATE CHANGE the Climate Crisis: An Implementation Plan has been released (available
RESPONSE at www.defence.govt.nz). The plan sets out a series of recommendations
- WORK PLAN based on the 2018 New Zealand Defence Assessment, The Climate Crisis:
Defence Readiness and Responsibilities, released last December. Drawing
from the 2018 recommendations, the two Defence agencies have developed a
four pillar model outlined in the plan - Respond, Adapt, Mitigate and
Engage - to capture the recommendations and advance Defence's work on
climate change. (Minister of Defence Ron Mark and Minister for Climate
Change James Shaw, media release 9/12/2019.)

DISTRICT COURT John Joseph Brandts-Giesen, retiring District Court Judge, has been
- ACTING JUDGE appointed to be an Acting District Court Judge for two years from
APPOINTMENT 8/3/2020. (NZ Gazette, 9/12/2019.)

TERTIARY EDUCATION Wayne Ngata and Kirk Hope have been appointed to the board of the
COMMISSION BOARD Tertiary Education Commission for three year terms commencing on
- APPOINTMENTS 26/11/2019. (NZ Gazette, 12/12/2019.)

VETERANS The Coalition Government has released its initial response to work
- ADVISORY BOARD completed by the independent statutory body, the Veterans' Advisory
REVIEW Board on a recommendation referred to it following Professor Ron
- INITIAL GOVERNMENT Paterson's review of the Veterans' Support Act in 2018. The Board was
RESPONSE asked to look at who should be considered a veteran and how their
service should be recognised, "an issue that a number of veterans had
expressed disquiet about." The Veterans' Advisory Board has recommended
that all who have served should be considered veterans, and should
receive services and support, on the basis of need, if they have been
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LI 2019/301 The GOVERNOR-GENERAL (ALLOWANCE) ORDER 2019 fixes at a rate of $32,883

per annum the Governor-General's tax-exempt allowance to reflect the
increase in the New Zealand Consumers Price Index (an increase of $475
per annum). Deemed to have commenced on 1/10/2019.

LI 2019/302 The LAND TRANSPORT (OFFENCES AND PENALTIES) AMENDMENT REGULATIONS (NO 2)
2019 prescribes the maximum penalty for a new provision making it an
offence for a person to knowingly make a false declaration when applying
for identification of a vehicle as an immigrant's vehicle or for a
special interest motorcycle permit. Commence on 17/1/2020.

LI 2019/303 The LAND TRANSPORT (OFFENCES AND PENALTIES) AMENDMENT REGULATIONS (NO 3)
2019 create infringement offences and prescribe infringement fees for
breaches of the new wheel clamping provisions by persons who apply
immobilising devices to parked motor vehicles. Commence on 10/1/2020.

LI 2019/304 The LAND TRANSPORT (CERTIFICATION AND OTHER FEES) AMENDMENT REGULATIONS
2019 make a minor amendment clarifying that the fee payable under
regulation 11(1), which deals with the fees payable for the purposes of
Land Transport Rule: Frontal Impact 2001, is the fee for making the
application. Commence on 17/1/2020.

LI 2019/305 The CIVIL AVIATION (OFFENCES) AMENDMENT REGULATIONS 2019 update the list
of offences in Schedule 1 to reflect amendments to the rules made in
2018. Commence on 1/2/2020.

LI 2019/306 The EDUCATION (EARLY CHILDHOOD SERVICES) AMENDMENT REGULATIONS 2019

allow a person with a primary or early childhood teaching qualification
to be a person responsible for a licensed early childhood education and
care centre that is teacher led. However, only a person responsible with
an early childhood teaching qualification may be counted for the
requirement that 50% of the required staff hold that qualification.
Commence on 9/1/2020.

LI 2019/307 The STUDENT ALLOWANCES (STATE-SUPPORTED CARE EXEMPTIONS) AMENDMENT

REGULATIONS 2019 make amendments so that specified State-supported care
does not affect eligibility for or entitlements to student allowances.
The amendments apply only to study starting on or after 1/1/2020 (even
if the enrolment concerned was applied for or permitted, or both, before
that date). Commenced on 13/12/2019.

LI 2019/308 The STUDENT LOAN SCHEME (REPAYMENT THRESHOLD) REGULATIONS 2019 increase
the annual repayment threshold for the purposes of the Student Loan
Scheme Act 2011 from $19,760 to $20,020. Commence on 1/4/2020.

LI 2019/309 The BUILDING (FORMS) AMENDMENT REGULATIONS 2019 insert a new form
relating to a new subpart that will be inserted into the Building Act
2004 on 18/12/2019 and contains special provisions for buildings
affected by emergencies. Commence on 10/1/2020.

LI 2019/310 The BUILDING (LEVY) REGULATIONS 2019 continue the rate and amount a levy
on a person to whom a building consent is granted set by the 2005 order
until 30/6/2020 with a new levy rate of $1.52 plus GST and minimum
estimated value of $20,444 (inclusive of GST)to then apply for building
consents granted on or after 1/7/2020. Commence on 10/1/2020 but the
change to the levy rate does not take effect until 1/7/2020.

LI 2019/311 The CUSTOMS AND EXCISE AMENDMENT REGULATIONS (NO 3) 2019 amend the
principal regulations so that those rules of origin for goods imported
to New Zealand from Singapore under the Singapore Closer Economic
Partnership Agreement are incorporated by reference. Commence on
1/1/2020.

LI 2019/312 The VETERANS' SUPPORT AMENDMENT REGULATIONS (NO 4) 2019 amend Schedule 1
of the principal regulations, which lists the Australian statements of
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principles that apply to specified medical conditions for the purposes

of the Veterans' Support Act 2014 by replacing references to the
Australian statements of principles for 11 conditions with updated
references and changing the names of 3 of those conditions. Commence on
2/1/2020.

LI 2019/313 The TRADE IN ENDANGERED SPECIES ORDER 2019 align the schedules of the
Trade in Endangered Species Act 1989 with changes that have been made to
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora. Most changes commence on 9/1/2020.

LI 2019/314 The FISHERIES (NOTIFICATION OF TANGATA TIAKI/KAITIAKI FOR WAITARAKAO

MATAITAI RESERVE) NOTICE 2019 gives notice of the appointment of 2
Tāngata Tiaki/Kaitiaki and the reappointment of 12 Tāngata
Tiaki/Kaitiaki for the mātaitai reserve in the Washdyke Lagoon area of
South Canterbury. Commences on 31/1/2020 and revokes itself on
20/8/2024.

LI 2019/315 The FISHERIES (NOTIFICATION OF TANGATA TIAKI/KAITIKI FOR OPIHI MATAITAI

RESERVE) NOTICE 2019 gives notice the appointment of 2 Tāngata
Tiaki/Kaitiaki and the reappointment of 12 Tāngata Tiaki/Kaitiaki for
the mātaitai reserve in the Opihi Lagoon area of South Canterbury.
Commences on 31/1/2020 and revokes itself on 20/8/2024.

LI 2019/316 The FISHERIES (NOTIFICATION OF KAITUKUTOHU (TANGATA KAITIAKI/TIAKI) FOR

AREA/ROHE MOANA AND TE ROROHURI) NOTICE 2019 gives notice of the
appointment of 3 Kaitukutohu (Tāngata Kaitiaki/Tiaki) for the customary
food gathering area/rohe moana in Northland. Commences on 31/1/2020.

LI 2019/317 The REGISTERED ARCHITECTS AMENDMENT RULES 2019 amend the 2006 Rules and
are designed to streamline the current procedure for resolving
complaints. In particular, a complaint will be determined at the end of
the investigation process, and a disciplinary hearing will only be held
if the architect requests one. Commence on 10/1/2020.

GENERAL REVIEW (CONTINUED)

injured or made ill by their service in the armed forces, irrespective
of where that service took place. "That would be a substantial change to
the current situation in New Zealand and, as the Board recognises, there
are a number of implications to be worked through. I'm asking my
officials to examine and cost the sorts of scenarios for veteran
recognition that the Board has detailed, and to examine the possibility
of a navigator service to help military personnel transition to civilian
life." The Board also recommended a Covenant, or Kawenata, be
established between service people and the Government and the people of
New Zealand to formalise an undertaking that those who serve, and their
families, should not be disadvantaged by service, and that special
provision be made for those who have sacrificed the most. The Advisory
Board will be reporting back with their findings by 31/7/2019 and those
interested in this topic are encouraged to engage with the Board.
(Minister for Veterans Ron Mark, media release, 10/12/2019.)

VICTIMS The Chief Victims Advisor to Government Dr Kim McGregor, QSO, has been
- CHIEF ADVISOR reappointed in her role for a further two years. "Many victims do not
REAPPOINTED feel safe, supported or listened to in the current justice system, so it
is critical for the Government to increase our understanding of how the
current criminal justice system is failing victims, and what we can do
to reform it." (Justice Minister Andrew Little, media release,
11/12/2019.)

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