The Law Report

Building safety and the workplace (21 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

Nearly a year has passed since the February quake, and building safety is very much at the forefront of people's minds.

We have been answering an increasing number of questions from building owners, employers and employees about building safety. How do they know if their building is safe? What standard does it need to reach? Will they be criminally liable under the Health and Safety in Employment Act (HSE Act)? What do they do when they don't own the building and don't have the ultimate say?

Under the HSE Act, employers must take all practicable steps to prevent buildings they own or occupy from causing harm (e.g. due to internal hazards or because of structural collapse). While there is not a duty to make buildings absolutely safe, a high standard applies. Risks must be identified, and steps taken to eliminate, isolate or minimise those risks.

Source: Building safety and the workplace (21 February 2012)

Legal update on information and communication technology - February 2012

Wed, 22 Feb 2012 00:00:00 +1300

In this issue -

Torrenting of private photos prevented;
Australian cloud computing guidelines;
SOPA and PIPA - Implications for New Zealand websites;
Government launches its government cloud programme;
AstraZeneca v IBM; and
Megaupload shutdown signals risks in the cloud.

Source: Legal update on information and communication technology - February 2012

Public law update - Overseas Investment Act (17 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

The decision by the High Court on 15 February to set aside the consent granted to Shanghai Pengxin's subsidiary Milk NZ to acquire the Crafar farms is the latest twist in the long-running Crafar farms saga.

The Ministers' initial decision to approve the Shanghai Pengxin acquisition caused outrage amongst those who believe that New Zealand shouldn't sell off its assets to foreign interests. The High Court's decision has caused outrage amongst those who believe in the value of foreign investment in New Zealand.

Is all the outrage justified? A level-headed review of the decision says no.

Source: Public law update - Overseas Investment Act (17 February 2012)

Environmental reforms gather pace (16 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

As the National-led Government settles into a second term in office New Zealanders can expect a programme of wide-ranging environmental law reform and policy development.

Having introduced "simplifying and streamlining" amendments to the Resource Management Act 1991 (RMA) in its previous term, the Government will now look to implement "Phase Two" of its RMA reforms.

Source: Environmental reforms gather pace (16 February 2012)

The progress of earthquake-related demolitions in Christchurch (15 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

There are already signs that the rebuild of Christchurch is underway. Construction of the first new multi-storey building in the CBD red zone has begun on the site of the old Harcourts Grenadier building in Madras Street, and nearly 900 earthquake related building consents have been issued since September 2010 with a stated value of $222.5 million [1].

The Christchurch City Council expects an additional 10,000 earthquake related building and resource consent applications a year for at least the next three years.

However, the demolition and deconstruction of dangerous and earthquake damaged buildings continues. As the anniversary of the February earthquake approaches, we thought it timely to review the progress of demolition and deconstruction of damaged buildings in Christchurch.

Source: The progress of earthquake-related demolitions in Christchurch (15 February 2012)

Judicial review of Crafar farms overseas investment consent (17 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

The recent decision of the High Court1 to set aside the Overseas Investment Act 2005 ("OIA") consent for the Crafar farms sale was the result of an error in the Ministers' decision making process, given that the Overseas Investment Office ("OIO") did not properly assess the economic factors to be taken into account when judging whether the proposed investment would benefit New Zealand. However, the case confirms that the Ministers still have a broad discretion to decide whether or not to grant consent. Once the Ministers assess those economic factors in the correct way, it is still possible for them to make a new decision to again grant consent to the sale.

Following this case, applicants for OIA consents for investment in sensitive land will need to ensure they provide sufficient evidence to allow the OIO to assess the economic factors in the correct way. This requires evidence of how the proposed overseas investment improves upon what would occur if the consent was not granted and the investment did not take place (as opposed to improving upon the status quo). In some cases, such as the Crafar farms sale, that counterfactual would be a sale to other (New Zealand) bidders, but it seems likely that in other cases the counterfactual will be the status quo (ie there is no sale to any new owner).

Source: Judicial review of Crafar farms overseas investment consent (17 February 2012)

Watching Brief (15 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

In this edition:

A MATTER OF OPINION

‘One size fits all’ approach to social policy no fit at all -
Following on from his less than populist observations on the moral and fiscal failure of prisons, Bill English chose a pre-Christmas address to public servants to tilt at another Kiwi shibboleth – this time the one size fits all approach to social intervention. more...

IN POLITICS

All over bar the shouting… or is it?
Any casual observer would have good reason for thinking that the previously comfortable accommodation between National and the Māori Party is a thing of the past. more...
Water ownership
The current imbroglio between the Māori Party, the Government and iwi has also served to highlight longstanding concerns about the ownership - or more particularly the allocation and use – of fresh water. more...

IN THE NEWS

Submissions called on review of MMP
Briefings to Incoming Ministers released
Key FM: harmless talkback or electoral endorsement?
FMA Consultation

Source: Watching Brief (15 February 2012)

Implications of the Crafar Decision (21 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

The High Court has set aside the Government's consent to Shanghai Pengxin Group's purchase of 16 dairy farms around the North Island of New Zealand, known as the Crafar farms. The judgment requires the Overseas Investment Office (OIO) and Ministers to take a different approach to assessing economic benefits in OIO consent applications.

The decision may complicate an overseas investor's task of demonstrating economic benefit on an application to acquire "sensitive land" in New Zealand.

The Court has now imposed a requirement for applicants to demonstrate an incremental benefit for New Zealand, over and above the benefits that would occur in any event. Economic benefits only count if they would not occur anyway (a "with and without the investment" test). This differs from the approach to benefit assessment adopted by the OIO to date, which assesses net improvements from the status quo (a "before and after the investment" test).

Source: Implications of the Crafar Decision (21 February 2012)

Property Update: Earthquake Prone Buildings (Part One: Council Policies)

Wed, 22 Feb 2012 00:00:00 +1300

The impact of the Christchurch earthquakes has focussed attention on earthquake prone buildings across the country, both in terms of the human and economic costs.

Those with the greatest interest include the councils that are required to implement earthquake prone building policies under the Building Act 2004. This comes at a time when many councils are already undertaking the required five yearly reviews of their existing policies.

Source: Property Update: Earthquake Prone Buildings (Part One: Council Policies)

High Court sets aside Crafar farms OIO consent (16 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

In a decision released yesterday,the High court has decided that the Overseas Investment Office's decision to grant consent to Shanghai Penxin to buy the Crafar dairy farms must be reconsidered. Justice Miller rules that Ministers Maurice Williamson and Jonathon Coleman had misdirected themselves in law and instructed the Ministers to reconsider the application.

Source: High Court sets aside Crafar farms OIO consent (16 February 2012)

Crafar farms: has investing in New Zealand by overseas persons just got harder? (16 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

A judgment issued by the High Court yesterday has set aside Ministerial consent to the overseas investment to be made by a Chinese company for the purchase of farmland in New Zealand commonly referred to as the ‘Crafar farms’. The price has not been disclosed but there has been speculation of a value of $210 million.

Justice Miller found that the Overseas Investment Office (‘OIO’), which makes recommendations to the relevant Ministers, incorrectly assessed the economic benefit to New Zealand of the overseas investment.

Source: Crafar farms: has investing in New Zealand by overseas persons just got harder? (16 February 2012)

Keeping on top of IP strategy (20 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

The start of a new year is a great time for new ventures to refocus. Business plans and strategies can be dusted off, critiqued, amended or binned.

IP and commercialisation strategies are no different. They need regular review and refinement to make sure they’re not heading in one direction while your business heads in another.

The long lead times with R&D and IP development mean new ventures in particular must take care to try and avoid spending in areas that won’t be relevant to the business in 2–3 years time. Patent strategies in particular may need regular tweaking as technologies, markets and commercialisation strategies change.

Source: Keeping on top of IP strategy (20 February 2012)

Sweeping new changes to court rules for litigation (22 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

On 1 February 2012 the High Court and District Court introduced substantial changes to the court rules relating to discovery and inspection. The changes have been described as the most significant in a generation, and aim to fundamentally change the conduct of litigation.

The purpose of the new rules is to address costs and delays resulting from discovery processes, to bring the rules up to date in dealing with emails and other ESI, and to take advantage of new technology where possible.

Source: Sweeping new changes to court rules for litigation (22 February 2012)

Government restructuring set to continue in 2012 (16 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

Indications from the Prime Minister at a press conference on Monday confirm plans to further revamp the public sector during a second term in power. Late last year, the Government signalled that significant restructuring was likely over the next three years, with some significant announcements to come in 2012. Details of the overhaul are to feature in a speech by the Prime Minister scheduled within the next three weeks.

Already in the pipeline is a merger of "back office" functions in the Treasury, State Services Commission and Department of the Prime Minister and Cabinet to form a new shared services unit from next month. In addition, proposed job losses in Te Puni Kokiri were announced two weeks ago aimed at downsizing the department.

Source: Government restructuring set to continue in 2012 (16 February 2012)

Chrisco Cops Fine for Misleading Customers; NZ Corporate and Commercial Update - February 2012 (22 February 2012)

Wed, 22 Feb 2012 00:00:00 +1300

On the 1st of February well known Christmas hamper company Chrisco pleaded guilty to 10 charges brought under the Fair Trading Act 1986 following an investigation by the Commerce Commission.

The charges were brought under the ‘false and misleading’provisions of section 13(i) of the Fair Trading Act: which prohibits businesses from making a false or misleading representation concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right, or remedy.

Source: Chrisco Cops Fine for Misleading Customers; NZ Corporate and Commercial Update - February 2012 (22 February 2012)