Overseas Investment Act 2005

6 Interpretation

(1)

In this Act, unless the context requires otherwise,—

25% or more ownership or control interest has the meaning set out in subsection (4)

25% or more subsidiary has the meaning set out in subsection (5)

acquisition includes obtaining ownership or coming into possession by any means

associate has the meaning set out in section 8

associated land has the meaning set out in section 8

bed means—

(a)

in relation to any river, the space of land that the waters of the river cover at its fullest flow without overtopping the banks; and

(b)

in relation to a lake not controlled by artificial means, the space of land that the waters of the lake cover at its highest level without exceeding its physical margin; and

(c)

in relation to a lake controlled by artificial means, the space of land that the waters of the lake cover at the maximum operating level

benefit to New Zealand test means the test set out in section 16A

business decision means a decision under this Act on whether or not to consent to an overseas investment in significant business assets

category, in relation to an overseas investment, means any of the following categories:

(a)

an overseas investment in sensitive land:

(b)

an overseas investment in significant business assets:

(c)

an overseas investment in fishing quota

Commission means the Overseas Investment Commission

commitment to reside in New Zealand test means the test set out in Part 2 of Schedule 2

consent means a consent granted under this Act for an overseas investment transaction

consent holder means the person or persons to whom a consent is issued

conveyancing services has the same meaning as in section 6 of the Lawyers and Conveyancers Act 2006

court means the High Court

district valuation roll means the roll that each territorial authority must prepare and maintain under section 7 of the Rating Valuations Act 1998 for its own district in accordance with rules made under that Act

document means any record of information; and includes—

(a)

anything on which there is writing or any image; and

(b)

information recorded by means of any article or device (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device; and

(c)

material subsequently derived from information recorded by that means

excluded accommodation facility means—

(a)

a hospital; or

(b)

any premises used, or intended to be used, in the course of business principally for providing temporary lodging to the public; or

(c)

a camping ground; or

(d)

any facility within a class set out in regulations as a class of facility to be treated as an additional excluded accommodation facility in this Act

exempted interest means—

(a)

an easement; or

(b)

a profit à prendre that is not a regulated profit à prendre

exemption certificate means a certificate granted under clause 4 of Schedule 3 (dwellings in large apartment developments that are purchased off-the-plans)

farm land means land (other than residential (but not otherwise sensitive) land) used exclusively or principally for agricultural, horticultural, or pastoral purposes, or for the keeping of bees, poultry, or livestock

fishing quota decision means a decision under sections 56 to 58B of the Fisheries Act 1996 on whether or not to consent to an overseas investment in fishing quota

foreshore or seabed

(a)

means the marine area that is bounded,—

(i)

on the landward side by the line of mean high water springs; and

(ii)

on the seaward side, by the outer limits of the territorial sea (within the meaning of section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977); and

(b)

includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and

(c)

includes the bed of Te Whaanga Lagoon in the Chatham Islands; and

(d)

includes the air space and the water space above the areas described in paragraphs (a) to (c); and

(e)

includes the subsoil, bedrock, and other matters below the areas described in paragraphs (a) to (c),—

but any reference to land adjoining the foreshore is to land that adjoins this land on the landward side only

forestry right means—

(a)

a right created in accordance with the Forestry Rights Registration Act 1983; or

(b)

any other profit à prendre that—

(i)

relates to taking timber from a forest; and

(ii)

to the extent (if any) that the profit à prendre relates to other things, would, were the profit à prendre to be treated as a separate profit à prendre in relation to those things, fall within paragraph (b) of the definition of regulated profit à prendre in this subsection

give effect to an overseas investment

(a)

means to acquire or dispose of any property, or establish any business, that results in an overseas investment in sensitive land, overseas investment in significant business assets, or overseas investment in fishing quota; but

(b)

excludes an acquisition, disposition, or establishment that is conditional on consent being obtained under this Act

governing body means,—

(a)

in relation to a body corporate, the board of directors (or other persons or body exercising powers of management, however described) of the body corporate:

(b)

in relation to a trust, the trustees:

(c)

in relation to a unit trust, the manager and trustee:

(d)

in relation to a partnership, unincorporated joint venture, or other unincorporated body of persons, either—

(i)

the board of directors (or other persons or body exercising powers of management, however described) of the partnership, unincorporated joint venture, or other unincorporated body of persons; or

(ii)

if there is no board or other persons or body as described in subparagraph (i), the partners of the partnership or members of the unincorporated joint venture or other unincorporated body of persons

guidelines means guidelines issued by the regulator under section 36

historic heritage

(a)

means those natural and physical resources that contribute to an understanding and appreciation of New Zealand’s history and cultures, deriving from any of the following qualities:

(i)

archaeological:

(ii)

architectural:

(iii)

cultural:

(iv)

historic:

(v)

scientific:

(vi)

technological; and

(b)

includes—

(i)

historic sites, structures, places, and areas; and

(ii)

archaeological sites; and

(iii)

sites of significance to Maori, including wahi tapu; and

(iv)

surroundings associated with the natural and physical resources

incidental residential use test means the test set out in clause 14 of Schedule 2

increased housing test means the test set out in clause 11 of Schedule 2

individuals with control of the relevant overseas person has the meaning set out in section 15

interest includes a legal or equitable interest

investor test, in relation to an overseas investment in sensitive land, means the test set out in section 16(2)

involved has the meaning set out in subsection (7)

lake means a lake (as defined in section 2(1) of the Resource Management Act 1991) that has a bed that exceeds 8 hectares in area

land decision means a decision under this Act on whether or not to consent to an overseas investment in sensitive land

LINZ means Land Information New Zealand

long-term accommodation facility

(a)

means—

(i)

a retirement village or rest home; or

(ii)

a hostel within the meaning of section 2 of the Education Act 1989, or other facility used or intended to be used to provide accommodation to students in accordance with the requirements of section 5B of the Residential Tenancies Act 1986; but

(b)

does not include any facility to the extent that it is, or is part of, an excluded accommodation facility

Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

natural and physical resources has the meaning set out in section 2(1) of the Resource Management Act 1991

non-occupation outcome has the meaning set out in clause 17 of Schedule 2

non-residential use test means the test set out in clause 13 of Schedule 2

non-urban land means—

(a)

farm land; and

(b)

any land other than land that is both—

(i)

in an urban area; and

(ii)

used for commercial, industrial, or residential purposes

ordinarily resident in New Zealand has the meaning set out in subsection (2)

overseas investment in fishing quota has the meaning set out in section 57D of the Fisheries Act 1996

overseas investment in sensitive land has the meaning set out in section 12

overseas investment in significant business assets has the meaning set out in section 13

overseas investment transaction means a transaction that results in an overseas investment in sensitive land, an overseas investment in significant business assets, or an overseas investment in fishing quota

overseas person has the meaning set out in section 7

property includes real and personal property, any interest in any real or personal property, any chose in action, and any other right or interest

regulated profit à prendre

(a)

means—

(i)

a forestry right; or

(ii)

any other profit à prendre, if the area of land covered by the profit à prendre is (or will be) used exclusively or principally for the purposes of the profit à prendre; but

(b)

does not include a profit à prendre that is not a forestry right, if the profit à prendre

(i)

consists only of rights to take any mineral (as that term is defined in section 2(1) of the Crown Minerals Act 1991); or

(ii)

is within a class set out in regulations as a class of profits à prendre not to be treated as regulated profits à prendre

regulations means regulations made under this Act

regulator has the meaning set out in section 30

relevant land, in relation to an overseas investment in sensitive land, means the land referred to in section 12(a) or 12(b)

relevant Minister or Ministers means,—

(a)

in the case of a business decision, the Minister:

(b)

in the case of a fishing quota decision, the Minister and the Minister of Fisheries:

(c)

in the case of a land decision, the Minister and the Minister for Land Information:

(d)

in the case of a decision that is in more than 1 of the above categories, all of the Ministers that are relevant to those categories

relevant overseas person has the meaning set out in section 15

Reserve Bank means the Reserve Bank of New Zealand

residential (but not otherwise sensitive) land means land that—

(a)

is or includes residential land; but

(b)

is not otherwise sensitive under Part 1 of Schedule 1

residential dwelling

(a)

means a building or group of buildings, or part of a building or group of buildings, that is—

(i)

used, or intended to be used, only or mainly for residential purposes; and

(ii)

occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but

(b)

does not include any dwelling—

(i)

to the extent that it is, or is part of, a long-term accommodation facility or an excluded accommodation facility; or

(ii)

within a class set out in regulations as a class of dwellings not to be treated as residential dwellings in this Act

residential land

(a)

means land that has a property category of residential or lifestyle in, or for the purpose of, the relevant district valuation roll (for example, the land’s first character category code is “R” or “L”); and

(b)

includes a residential flat in a building owned by a flat-owning company (regardless of whether the building is on land within a property category referred to in paragraph (a)), and, for that purpose, references in this Act to interest include a licence to occupy that flat, where terms in this paragraph have a meaning corresponding to those in section 121A of the Land Transfer Act 1952 or section 122 of the Land Transfer Act 2017

river means a river (as defined in section 2(1) of the Resource Management Act 1991) that has a bed of an average width, for its length on or adjoining the relevant land, of 3 metres or more

security

(a)

means any interest or right to participate in any capital, assets, earnings, royalties, or other property of any person; and

(b)

includes specifically—

(i)

a share in a company or other body corporate; and

(ii)

a unit in a unit trust; and

(iii)

an interest in a partnership or unincorporated joint venture; and

(iv)

a right, conferred by membership of an incorporated or unincorporated body of persons, to participate in the control or management of the body, vote at a general meeting of the body, or participate in the assets or property of the body on its winding up; and

(c)

includes also any other interest or right that confers rights of ownership of the property of any person, or to participate in the property of any person on the winding up of that person; and

(d)

includes also any other interest that confers rights to exercise control over the property or assets of any person; and

(e)

includes securities within paragraphs (a) to (d) in whatever currency they are expressed and whether they are situated in New Zealand or elsewhere; but

(f)

excludes an interest or right that is—

(i)

solely an interest in or right to be paid money that is, or is to be, deposited with, lent to, or otherwise owing by, any person (and is not convertible into a security within paragraphs (a) to (d)); or

(ii)

conferred solely for the purpose of securing the repayment of money of that kind (and is not convertible into a security within paragraphs (a) to (d))

security arrangement means an arrangement that in substance secures payment or performance of an obligation (without regard to the form of the arrangement or the identity of the person who has title to the property that is subject to the arrangement)

sensitive (but not residential) land means land that—

(a)

is not and does not include residential land; but

(b)

is sensitive under Part 1 of Schedule 1 for some other reason

subsidiary has the meaning set out in sections 5 and 6 of the Companies Act 1993

transaction includes—

(a)

the sale or transfer of property or securities; and

(b)

the issue, allotment, buyback, or cancellation of securities; and

(c)

the entering into, or the giving of effect to a provision in, a contract or arrangement; and

(d)

the arriving at, or the giving of effect to, an understanding

working day means a day of the week other than—

(a)

a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, and Labour Day; and

(ab)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(b)

a day in the period commencing with 25 December in a year and ending with 15 January in the following year.

(2)

In this Act, a person is ordinarily resident in New Zealand,—

(a)

for the purposes of a transaction that will result in an overseas investment in sensitive land where the relevant land is or includes residential land, and related matters, if the person—

(i)

holds a residence class visa granted under the Immigration Act 2009; and

(ii)

has been residing in New Zealand for at least the immediately preceding 12 months; and

(iii)

is tax resident in New Zealand; and

(iv)

has been present in New Zealand for 183 days or more in total in the immediately preceding 12 months (counting presence in New Zealand for part of a day as a presence for a whole day):

(b)

for the purposes of a transaction that will not result in an overseas investment in sensitive land where the relevant land is or includes residential land, and related matters, if the person—

(i)

holds a residence class visa granted under the Immigration Act 2009; and

(ii)

is in one of the following categories:

(A)

is domiciled in New Zealand; or

(B)

is residing in New Zealand with the intention of residing there indefinitely, and has done for the immediately preceding 12 months (see subsection (3)).

(2A)

In subsection (2)(a)(iii), tax resident in New Zealand means a person who is a New Zealand resident under section YD 1(3) of the Income Tax Act 2007, where the reference in section YD 1(3) to a 12-month period is treated as the immediately preceding 12 months (disregarding the rules in section YD 1(4) to (6) of that Act).

(3)

Absence from New Zealand for no more than 183 days in aggregate in the last 12 months (counting presence in New Zealand for part of a day as presence for a whole day) does not prevent a person from satisfying the requirement for residing in New Zealand for the last 12 months under subsection (2)(b)(ii)(B).

(4)

In this Act, a person (A) has a 25% or more ownership or control interest in another person (B) if A has—

(a)

a beneficial entitlement to, or a beneficial interest in, 25% or more of B’s securities; or

(b)

the power to control the composition of 25% or more of the governing body of B; or

(c)

the right to exercise or control the exercise of 25% or more of the voting power at a meeting of B.

(5)

In this Act, a body corporate (B) is a 25% or more subsidiary of another body corporate (A) if—

(a)

B is a subsidiary of A under sections 5 to 7 of the Companies Act 1993; or

(b)

A controls the composition of 25% or more of the governing body of B; or

(c)

A is in a position to exercise, or control the exercise of, 25% or more of the voting power at a meeting of B.

(6)

Section 7 of the Companies Act 1993 applies for the purposes of determining under this Act whether a person controls the composition of the governing body of another person as if references in that section to a company, a board, and directors were to a person, a governing body, and members of the governing body, respectively.

(7)

In this Act, a person is involved in a contravention, the commission of an offence, or a failure to comply if the person—

(a)

has aided, abetted, counselled, or procured the contravention, the commission of the offence, or the failure; or

(b)

has induced, whether by threats or promises or otherwise, the contravention, the commission of the offence, or the failure; or

(c)

has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention, the commission of the offence, or the failure; or

(d)

has conspired with others to effect the contravention, the commission of the offence, or the failure.

(8)

Subsection (7) does not apply to proceedings for offences (but see Part 4 of the Crimes Act 1961, which relates to parties to the commission of offences).

Section 6(1) benefit to New Zealand test: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) commitment to reside in New Zealand test: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) conveyancing services: inserted, on 22 October 2018, by section 8(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) district valuation roll: inserted, on 22 October 2018, by section 4 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) excluded accommodation facility: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) exempted interest: replaced, on 22 October 2018, by section 6(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) exemption certificate: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) farm land: amended, on 22 October 2018, by section 8(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) forestry right: inserted, on 22 October 2018, by section 6(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) incidental residential use test: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) increased housing test: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) investor test: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) involved: inserted, on 22 October 2018, by section 8(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) long-term accommodation facility: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) non-occupation outcome: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) non-residential use test: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) regulated profit à prendre: inserted, on 22 October 2018, by section 6(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) residential (but not otherwise sensitive) land: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) residential dwelling: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) residential land: inserted, on 22 October 2018, by section 4 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) security arrangement: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) sensitive (but not residential) land: inserted, on 22 October 2018, by section 8(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(1) working day paragraph (ab): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

Section 6(2): replaced, on 22 October 2018, by section 8(4) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(2A): inserted, on 22 October 2018, by section 8(5) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(3): amended, on 22 October 2018, by section 8(6) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(7): inserted, on 22 October 2018, by section 8(7) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 6(8): inserted, on 22 October 2018, by section 8(7) of the Overseas Investment Amendment Act 2018 (2018 No 25).