The Law Report

2012 Consultation on proposed changes to Emissions Trading Scheme (16 May 2012)

Wed, 16 May 2012 00:00:00 +1200

The Government is currently consulting on changes to the New Zealand Emissions Trading Scheme. In this Q&A we answer some questions about the scope and implications of that consultation. The questions are:

Why does New Zealand have an Emissions Trading Scheme (ETS)?
What is the current consultation process?
What are the key changes proposed by the Government?
What did the Government choose not to change and why?
What will we be able to do with NZUs from 2013?
What else might change in the future?
When will the changes be implemented?
How and when can we make a submission?

Source: 2012 Consultation on proposed changes to Emissions Trading Scheme (16 May 2012)

Heritage New Zealand: Looking to the Future (10 May 2012)

Wed, 16 May 2012 00:00:00 +1200

The Heritage New Zealand Pouhere Taonga Bill does a lot more than change the name of the New Zealand Historic Places Trust (HPT) to Heritage New Zealand Pouhere Taonga (HNZ).

The name change may provoke some reaction from members of the Trust, but the dissolution of Branch Committees and removal of Board positions for elected members may excite them more.

One of the challenges in the restructuring will be to achieve efficiencies without alienating those who provide around $3.5m or 20% of the HPT's income at present.

Source: Heritage New Zealand: Looking to the Future (10 May 2012)

Environmental prosecutions (15 May 2012)

Wed, 16 May 2012 00:00:00 +1200

The fines imposed for environmental prosecutions are rising. However environmental prosecutions are not only financially costly but can be damaging to a companies reputation. How do you proactively manage your liability and minimise the likelihood of accidents that cause environmental damage?

The 2009 amendments to the Resource Management Act 1991 (‘RMA’) resulted in, amongst other things, an increase in penalties and sentences for environmental offences. Originally set at $200,000 in 1991, the maximum fine for a company has now been set at $600,000.

Source: Environmental prosecutions (15 May 2012)

Improving workplace safety - walking the walk (16 May 2012)

Wed, 16 May 2012 00:00:00 +1200

While almost all modern businesses understand the need to provide a safe working environment for staff and visitors, and many have embraced the notion of process safety, a lot of businesses are still frustrated by their inability to prevent accidents from occurring.

Often this is due to cultural issues within the business, with staff taking shortcuts or not following procedures for a variety of reasons. Improving workplace safety culture requires a commitment from all levels of an organisation, but particularly from senior leaders and management.

Source: Improving workplace safety - walking the walk (16 May 2012)

Investor-state arbitration not deal breaker for TPP negotiations (11 May 2012)

Wed, 16 May 2012 00:00:00 +1200

Investor-state arbitration is a mechanism whereby foreign investors can directly enforce minimum international investment standards against host states through international arbitration proceedings.

Australia, after signing numerous investor-state treaties, has now taken a strong stance against investor-state arbitration in the Trans-Pacific Partnership (TPP) negotiations.

Prime Minister John Key last year dismissed any concerns that foreign investors could get special treatment in New Zealand as “far-fetched”. This is questionable, as New Zealand is already party to several investor-state treaties.

Source: Investor-state arbitration not deal breaker for TPP negotiations (11 May 2012)

Public Law Factsheet - Anonymous Donations (15 May 2012)

Wed, 16 May 2012 00:00:00 +1200

Recent political events have once again brought New Zealand’s electoral finance law to the fore. This time it’s the obligations of candidates in local, rather than central, government elections that are in the limelight. This Public Law Factsheet takes a brief look at the differences between the obligations of candidates at the local and central government levels when dealing with anonymous electoral donations.

Source: Public Law Factsheet - Anonymous Donations (15 May 2012)

New counterfactual test for overseas investments in New Zealand (16 May 2012)

Wed, 16 May 2012 00:00:00 +1200

On 27 January 2012, China-based Shanghai Pengxin was granted consent under the Overseas Investment Act 2005 to acquire 16 dairy farms (the infamous - in New Zealand - Crafar Farms) comprising close to 8000ha of land.

But on 15 February 2012, the High Court set aside the consent, requiring a different approach to be taken to assessing the economic benefits of an overseas investment.

As at the date of writing this article, the regulator, the Overseas Investment Office (OIO) has made a revised recommendation to decision-making Ministers, but Ministers are yet to make a new decision.

In advance of that decision being made, this article briefly summarises the High Court’s decision on the required approach to identifying the benefit to New Zealand of a potential overseas investment, and canvasses potential impacts of the decision.

Source: New counterfactual test for overseas investments in New Zealand (16 May 2012)

Consumer credit review - recommendations on repossession law (16 May 2012)

Wed, 16 May 2012 00:00:00 +1200

Further to our recent update relating to the exposure draft of the Bill (Draft Bill) amending the Credit Contracts and Consumer Finance Act 2003 (CCCFA), the Law Commission has now released its report on possible amendments to the Credit (Repossession) Act 1997 (CRA).

As previously noted, the Ministry of Consumer Affairs (MCA) has indicated that comments on the Law Commission's recommendations would be welcomed as part of any submission on the Draft Bill. These submissions are now due on 25 May 2012. Information on how to make a submission is available here.

The Law Commission has made a number of recommendations in its comprehensive report (160 pages, available here), which it considers are "necessary to ensure clarity, efficiency and fairness" (p 3) in this area.

Source: Consumer credit review - recommendations on repossession law (16 May 2012)

New Reporting Requirements for Registered Charities (15 May 2012)

Wed, 16 May 2012 00:00:00 +1200

Registered Charities need to be aware of two important changes to the Charities Act 2005 (Act) which came into effect on 24 February 2012. These relate to their reporting obligations to the Charities Commission (Commission) (shortly to be reconstructed as a board within the Department of Internal Affairs).

A registered charity now has to act immediately if one of its officers becomes disqualified from being an officer under the criteria listed in the Act. If, for example, an officer is declared bankrupt or convicted of an offense of dishonesty, the charity will have three choices, removing the officer or convincing the officer to step down immediately and informing the Commission accordingly, contacting the Commission informing it of the disqualification and convincing the Commission that the officer can continue, or cancelling its registration.

Source: New Reporting Requirements for Registered Charities (15 May 2012)

The implications of the National Environmental Standard on soil contamination (10 May 2012)

Wed, 16 May 2012 00:00:00 +1200

This paper was presented by Marija Batistich to the Environmental Law and Regulation Conference on 30 April 2012.

New Zealand has an estimated 20,000 contaminated sites, with the major contaminating activities being from agriculture, the chemical industry, gasworks, the petroleum industry, timber treatment and waste disposal. Many of these sites have been sold or abandoned by the polluters, leaving the task of remediation to new owners or occupiers, or to central and local government in some instances.

The previous, largely unregulated regime for controlling the effects of contaminated sites was ad hoc and varied across district boundaries, especially between territorial authorities with large rating bases, and smaller and less well-resourced authorities.

Source: The implications of the National Environmental Standard on soil contamination (10 May 2012)

The Unitary Plan - it's on its way (15 May 2012)

Wed, 16 May 2012 00:00:00 +1200

Preparations for the mammoth task of drafting the Unitary Plan for Auckland are well underway. The Unitary Plan will be the key document for delivering the new strategic direction confirmed by the Council in the Auckland Plan. It will be the comprehensive resource management plan containing the objectives, policies and controls to manage all activities and development in Auckland. It is also clear the Government has not foreseen the planning complexity from preparing one combined plan when amalgamating the region, as well as complying with the existing specific requirements under the Resource Management Act.

Source: The Unitary Plan - it's on its way (15 May 2012)

From "cool to criminal": a warning for internet service providers (10 May 2012)

Wed, 16 May 2012 00:00:00 +1200

In the early 2000s, few would have grasped the worldwide legal ramifications for offering file sharing software and services. Following Napster, file sharing technology was new and exciting, consumers were embracing the idea, and service providers saw golden business opportunities.

One of the service providers was Kim Dotcom. Mr Dotcom saw the great potential in ‘cloud’ or ‘digital locker’ services long before many others. He sought legal advice and consulted the provisions of the United States Digital Millennium Copyright Act.[1] After satisfying himself that he was protected from the actions of his users as an “online service provider” under US law, his company set about making its millions.

Source: From "cool to criminal": a warning for internet service providers (10 May 2012)

Papa Aroha Land Occupation (14 May 2012)

Tue, 15 May 2012 00:00:00 +1200

The District Court judgment in Thames-Coromandel District Council v Henare has been tested on appeal and offers guidance to any local authority confronted with an occupation of publicly owned land. Brookfields' Senior Associate Mark Frogley represented the Council in both the District Court case and the appeal to the High Court.

In 2010 a group of Maori protestors occupied a public road which gives access to the beach at Papa Aroha from the main Coromandel-Colville Road. The occupiers said that their whanau were in occupation of their ancestral land and that they had moved back to occupy the Papa Aroha Marae.

Source: Papa Aroha Land Occupation (14 May 2012)

The Carbon copy : resource management update (May 2012)

Mon, 14 May 2012 00:00:00 +1200

In this edition:

Attempt to have climate change aired goes up in smoke - a recent Environment Court declaration has again confirmed that the responsibility of dealing with the effects of climate change falls on central government.
Planning overkill? Yet another layer of Auckland plans! - 21 Area Plans are to be added to current list of planning documents.
Challenges to plan policies discouraged - Resource consent application appeals on very clear objectives and policies of may also justify a higher than usual costs award. mEasing up on the ETS - recently released Updating of New Zealand Emissions Trading Scheme proposes amendments to ease the transition into full obligations.
Amending the Building Act 2004... Round 4 - the Building Amendment Bill (No 4) passed its first reading in Parliament on 1 May 2012.
Chop Chop - Auckland Council has called for further submissions on its plan changes to add aditional trees to its Notable Trees Schedule.

Source: The Carbon copy : resource management update (May 2012)

ACC cover available for pregnancy resulting from botched sterilisations or rape (10 May 2012)

Mon, 14 May 2012 00:00:00 +1200

Yesterday's landmark Supreme Court decision on the availability of ACC cover for unwanted pregnancies will have momentous implications in the health sector. The Court found that women who become pregnant as a result of either medical error resulting in a failed sterilisation procedure or rape have suffered a 'personal injury' and are entitled to receive compensation from ACC.

On 8 May 2012 the Supreme Court issued its decision in Allenby v H, holding that where a woman becomes pregnant following rape or as a result of medical misadventure (such as where a sterilisation procedure is incorrectly performed) the pregnancy falls within the definition of ‘personal injury’.

Source: ACC cover available for pregnancy resulting from botched sterilisations or rape (10 May 2012)