Reprint as at 1 August 2020

Coat of Arms of New Zealand

Overseas Investment Act 2005

Public Act
 
2005 No 82
Date of assent
 
21 June 2005
Commencement
 
see section 2
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Treasury.

Contents

1Title
2Commencement
3Purpose
4Overview
5Act incorporates sections 56 to 58B of Fisheries Act 1996
6Interpretation
7Who are overseas persons
8Meaning of associate and associated land
8AStatus of examples
8BTransitional, savings, and related provisions
9Act binds the Crown
10Consent required for overseas investments in sensitive New Zealand assets
11Consent must be obtained before overseas investment given effect
11AExemptions from requirement for consent
12What are overseas investments in sensitive land
13What are overseas investments in significant business assets
14Approach to criteria for consent
15Who are relevant overseas persons, and individuals with control, for overseas investments
16Criteria for consent for overseas investments in sensitive land
16ABenefit to New Zealand test
16BConditions for consents relating to sensitive land that is residential land: benefit to New Zealand test
16CConditions for consents relating to sensitive land that will be used for forestry activities
17Factors for assessing benefit of overseas investments in sensitive land
18Criteria for overseas investments in significant business assets
19Applying good character and Immigration Act 2009 criteria
20Exemptions from farm land offer criterion
20ATransactions that are transactions of national interest
20BOther transactions may be transactions of national interest if notice given
20CConsent may be declined if transaction contrary to national interest
20DWho are critical direct suppliers
20EProvisions relating to unpublished CDS
20FStatus of unpublished CDS confidential
20GWhat are media businesses with significant impact
21Application for consent
22Who must apply for consent
23Requirements for application for consent
23AApplications for standing consent in advance of transaction
24Who decides application
25Granting or refusal of consent
25AConditions of consent
25BAutomatic conditions: every overseas investment
25CAutomatic condition: every transaction of national interest
26Minister may revoke consent in case of fraud
27Consent may be varied by agreement
27AConsent holder may apply for new consent
28Conditions of consent [Repealed]
29Transaction may be cancelled
30Regulator
31What regulator does
32Delegation by relevant Minister or Ministers
33Rules that apply to delegation under this Act or regulations
34Ministerial directive letter
35Ministerial directive letter must be published, etc
36Regulator may issue guidelines
37Regulator must keep list of reserves, parks, and other sensitive areas
37ARegulator must publish list of sensitive adjoining land relating to collective group of Māori
37BTime frames
38Regulator may require person to provide information for monitoring purposes
39Regulator may require any person to provide information for statistical or monitoring purposes
40Regulator may require person to provide statutory declaration as to compliance
41Regulator may require information and documents to be provided
41APrivileges for person required to provide information or document
41BEffect of proceedings
41CEffect of final decision that exercise of powers under sections 38 to 41 unlawful
41DConfidentiality of information and documents
41EConditions relating to publication or disclosure of information or documents
41FRegulator may issue notice requesting disposal of property
41GConsequences of disposal or retention of property
42Offence of giving effect to overseas investment without consent
43Offence of defeating, evading, or circumventing operation of Act
44Offence of resisting, obstructing, or deceiving
45Offence of failing to comply with notice, requirement, or condition
46Offence of false or misleading statement or omission
46ARegulator may accept undertakings
46BWhen undertaking is enforceable
46CNotice of decision
46DWithdrawal or variation of enforceable undertaking
46EProceedings for alleged contravention
46FContravention of enforceable undertaking
46GConsiderations for court orders
47Court may order disposal of property
48Court may order person in breach or involved in breach to pay civil pecuniary penalty
48ADefences for person involved in contravention, offence, or failure
49Court may order mortgage to be registered over land
50Court may order interest to be paid
51Court may order compliance with condition of consent, exemption, exemption certificate, direction order, or interim direction order
51AAACourt may grant injunction
51AABWhen court may grant restraining injunctions
51AACWhen court may grant performance injunctions
51AADUndertaking as to damages not required by regulator
51AAEPublication under this subpart may be deferred or dispensed with
51APerson who acquires residential land must make and provide statement
51BRegulator must authorise manner of providing statement
51CConveyancer must obtain and keep statement
52Administrative penalties for late filing
53Administrative penalty for retrospective consent
54Address for service
54ANotices or other documents given, provided, or served by regulator
55Non-appearance not ground for court to refuse order under Act if person served in accordance with section 54A
55AProof that documents given, provided, or served
56Search warrant
57Form and content of search warrant [Repealed]
58Powers conferred by search warrant [Repealed]
59Requirements when executing search warrant [Not in force]
60Disposal of things seized under search warrant [Repealed]
61Regulations
61ARegulations regarding alternative monetary thresholds for overseas investments in significant business assets
61BPurpose of exemptions
61CRegulations may contain class or individual exemptions
61DMinister may grant individual exemptions
61ECriteria for all exemptions
61FOther provisions applying to all exemptions
61GPerson who relies on exemption to acquire property may be subject to existing consent or exemption conditions
62Foreshore, seabed, riverbed, or lakebed acquired by the Crown under consent process is not subdivision
63Commission dissolved
64Assets and liabilities vest in the Crown
65No compensation for loss of office
66Transfer to LINZ
67Transferring employee must be employed in equivalent employment
68Continuity of employment
69No compensation for technical redundancy
70Final report
71References to Commission
72Proceedings of Commission
[Repealed]
73New sections 56 to 58B substituted in Fisheries Act 1996 [Repealed]
[Repealed]
74Amendment to Te Ture Whenua Maori Act 1993 [Repealed]
[Repealed]
75Consequential amendments [Repealed]
76Repeal and revocations
77Transitional provision for acts done or begun under previous overseas investment regime
78Transitional provision for consents, exemptions, and conditions under 1973 Act and Regulations
79Transitional provision for permissions, etc, under Fisheries Act 1996
80Transitional provision relating to clause 6 of Schedule 1AA (Exemption relating to dwellings in large apartment developments where sales of dwellings have begun before assent date)
81Purpose of Part
82What are call-in transactions and overseas investments covered by emergency notification regime
83Who are relevant acquirers
84Review of call-in transactions
85Requirement to notify
86Measures to ensure emergency notification regime no broader than reasonably necessary
87Requirements for notification of call-in transaction
88Direction orders
89Direction orders may be varied by agreement
90Revocation of direction order
91Interim direction orders
92Prohibition orders
93Disposal orders
94Purpose of statutory management
95Statutory management of person who owns sensitive assets and associates
96Recommendation of Minister
97Statutory management of New Zealand business only
98Date and time of appointment
99Considerations affecting exercise of powers by statutory manager
100Role of regulator in statutory management
101Statutory manager may form body corporate to acquire business of branch of persons not incorporated in New Zealand
102Body corporate formed and registered also subject to statutory management
103Statutory manager may sell vested assets
104Statutory manager may terminate contracts or arrangements posing significant risk to national security or public order
105Application of Corporations (Investigation and Management) Act 1989
106Termination of statutory management
107Effect of termination of statutory management
108Powers to obtain documents and information
109Protection from liability and indemnity
110Expenses of statutory management
111Modifications where person under statutory management is regulated by Reserve Bank
112When risk management actions may be taken in connection with consented transactions of national interest
113Application of subpart
114Classified security information and other terms defined
115Obligation to provide court with access to classified security information
116Court orders
117Appointment of special advocate
118Nomination of person for appointment
119Role of special advocates
120Court may provide access to classified security information to special advocate
121Communication between special advocate and other persons
122Protection of special advocates from liability
123Other matters relating to procedure in proceedings involving classified security information
124Nothing in this subpart limits other rules of law that authorise or require withholding of document, etc
125Ancillary general practices and procedures to protect classified security information
126Power to use and disclose information relevant to managing certain risks
127Regulations regarding transactions of national interest and overseas investments in SIB assets
128Giving effect to and unwinding of call-in transactions
129Minister must publish decisions on call-in transactions and transaction of national interest
Reprint notes
 
1 Title

This Act is the Overseas Investment Act 2005.

2 Commencement

(1)

This Act comes into force on a date to be appointed by the Governor-General by Order in Council.

(2)

One or more Orders in Council may be made appointing different dates for the commencement of different provisions.

Section 2: Overseas Investment Act 2005 brought into force, on 25 August 2005, by clause 2 of the Overseas Investment Act Commencement Order 2005 (SR 2005/219).

Part 1 Preliminary provisions

3 Purpose

(1)

The purpose of this Act is to acknowledge that it is a privilege for overseas persons to own or control sensitive New Zealand assets by—

(a)

requiring overseas investments in those assets, before being made, to meet criteria for consent; and

(b)

imposing conditions on those overseas investments.

(2)

This Act also has the purpose of managing certain risks, such as national security and public order risks, associated with transactions by overseas persons.

Section 3(2): inserted, on 16 June 2020, by section 4 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

4 Overview

(1)

In this Act,—

(a)

this Part deals with preliminary matters, including the purpose of this Act and interpretation:

(b)

Part 2 contains the consent and conditions regime for overseas investments in sensitive New Zealand assets, and is organised as follows:

(i)

subpart 1 states when consent is required and the criteria for consent (except that those matters are stated in the Fisheries Act 1996 for overseas investments in fishing quota):

(ii)

subpart 2 sets out the procedure for obtaining consent and imposing conditions of consent:

(iii)

subpart 3 describes the role of the person (the regulator) who administers the regime:

(iv)

subpart 4 confers information-gathering powers on the regulator:

(v)

subpart 5 deals with aspects of enforcement, including offences under this Act, penalties, and the court’s powers to make orders for effective enforcement:

(vi)

subpart 6 relates to regulations and other miscellaneous matters:

(vii)

subpart 7 contains transitional provisions (mostly relating to the dissolution of the Overseas Investment Commission and the employment consequences for its employees) and amendments to other enactments (and see also Schedule 1AA for further transitional, savings, and related provisions):

(c)

Part 3 contains the management regime for certain risks, such as national security and public order risks, for transactions by overseas persons, and is organised as follows:

(i)

subpart 1 provides for the review of call-in transactions:

(ii)

subpart 2 sets out the details of the risk management actions that may be taken to manage certain risks: direction orders, prohibition orders, disposal orders, and statutory management:

(iii)

subpart 3 deals with the protection of classified information:

(iv)

subpart 4 relates to regulations and other miscellaneous matters.

(2)

This Act replaces the Overseas Investment Act 1973 and the Overseas Investment Regulations 1995.

(3)

This section is a guide only to the general scheme and effect of this Act.

Section 4(1)(b)(iv): amended, on 22 October 2018, by section 7(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 4(1)(b)(vii): amended, on 22 October 2018, by section 7(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 4(1)(c): inserted, on 16 June 2020, by section 5 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

5 Act incorporates sections 56 to 58B of Fisheries Act 1996

(1)

This Act incorporates sections 56 to 58B of the Fisheries Act 1996 (which in this section are called the overseas investment fishing provisions) as if they were part of this Act, so that a reference in this Act to “this Act” includes a reference to the overseas investment fishing provisions.

(2)

See section 57A of the Fisheries Act 1996 for further provisions on the interpretation of the overseas investment fishing provisions.

6 Interpretation

(1)

In this Act, unless the context requires otherwise,—

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

call-in transaction has the meaning set out in section 82

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

control rights, in respect of a person (A), means—

(a)

the power to participate in the control of the composition of A’s governing body; or

(b)

the right to exercise, or control of the exercise of, the voting power at a meeting of A

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

court means the High Court

critical direct supplier means a person who has been notified by the Minister of their status as a critical direct supplier under section 20D

direction order means an order made under section 88

disposal order means an order made under section 93

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

emergency notification regime means the regime in subpart 1 of Part 3 that is inserted by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020

estate or interest has the meaning set out in section 5(1) of the Land Transfer Act 2017

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, seabed has the same meaning as marine and coastal area

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 a call-in transaction

(a)

means to acquire or dispose of any property under a call-in transaction; but

(b)

excludes an acquisition or disposition that is conditional on a direction order being made

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

intelligence or security agency means—

(a)

the New Zealand Defence Force:

(b)

the Government Communications Security Bureau:

(c)

the New Zealand Security Intelligence Service

interim direction order means an order under section 91

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)

investor test factors means the factors set out in section 18A(4)

involved, in relation to a contravention, an offence, or a failure to comply, 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

listed issuer

(a)

means a person that is a party to a listing agreement with a licensed market operator in relation to a licensed market (and includes a licensed market operator that has financial products quoted on its own licensed market); but

(b)

excludes a person that is a listed issuer only because its debt securities are approved for trading on a licensed market,—

where terms used in this definition have the same meanings as in the Financial Markets Conduct Act 2013

long-term accommodation facility

(a)

means—

(i)

a retirement village or rest home; or

(ii)

a hostel within the meaning of section 10(1) of the Education and Training Act 2020, 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

managed investment scheme has the meaning set out in section 9 of the Financial Markets Conduct Act 2013

marine and coastal area has the meaning set out in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011, but any reference to land adjoining the marine and coastal area is to land that adjoins this land on the landward side only

media business with significant impact has the meaning set out in section 20G

military or dual-use technology means—

(a)

any goods listed in the strategic goods list, but not of a class specified in regulations; and

(b)

any technology—

(i)

that control of which, or access to which, could pose a significant risk to national security or public order; and

(ii)

that is within a class of technology set out in regulations

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

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

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

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

New Zealand listed issuer means a listed issuer that is incorporated in New Zealand

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

non-NZ government investor means—

(a)

the government, or any part of the government (including regional or local government), of—

(i)

a territory other than New Zealand; or

(ii)

a part of a territory other than New Zealand; or

(b)

a relevant government enterprise; or

(c)

a person who is acting—

(i)

as an agent, a trustee, or a representative of a person described in paragraph (a) or (b); or

(ii)

in any way on behalf of a person described in paragraph (a) or (b); or

(iii)

subject to the direction, control, or influence of a person described in paragraph (a) or (b)

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 Amendment Act (No 3) 2020 means the Act that will result from the Overseas Investment Amendment Bill (No 3)

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 SIB assets has the meaning set out in section 82

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

prohibition order means an order made under section 92

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 government enterprise means—

(a)

a body corporate (W), if a relevant government investor or investors have, directly or indirectly, a more than 25% ownership or control interest in W; or

(b)

a partnership, an unincorporated joint venture, or any other unincorporated body of persons (Z) (other than a trust or unit trust or managed investment scheme) if—

(i)

more than 25% of Z’s partners or members are relevant government investors; or

(ii)

1 or more relevant government investors have a beneficial interest in or entitlement to more than 25% of Z’s profits or assets (including on Z’s winding up); or

(iii)

1 or more relevant government investors have the right to exercise, or to control the exercise of, more than 25% of the voting power at a meeting of Z; or

(c)

a trust (X) (other than a managed investment scheme) if—

(i)

more than 25% of X’s governing body are relevant government investors; or

(ii)

1 or more relevant government investors have a beneficial interest in or entitlement to more than 25% of X’s trust property; or

(iii)

more than 25% of the persons having the right to amend or control the amendment of X’s trust deed are relevant government investors; or

(iv)

more than 25% of the persons having the right to control the composition of X’s governing body are relevant government investors; or

(d)

a unit trust (Y) (other than a managed investment scheme) if—

(i)

the manager or trustee, or both, are relevant government investors; or

(ii)

1 or more relevant government investors have a beneficial interest in or entitlement to more than 25% of Y’s trust property; or

(e)

a managed investment scheme if—

(i)

the manager or the trustee (as the case may be) is a relevant government investor; or

(ii)

more than 25% of the value of the investment products in the managed investment scheme is invested on behalf of 1 or more relevant government investors,—

where terms used in this paragraph have the same meanings as in the Financial Markets Conduct Act 2013

relevant government investor means a non-NZ government investor or an associate of a non-NZ government investor

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

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

risk management action means the making of a direction order, prohibition order, disposal order, or recommendation under section 96 that a person be put into statutory management

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

section 12 interest has the meaning set out in section 12

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 assets means—

(a)

a section 12 interest; and

(b)

any rights or interests in securities, business, or property of a kind described in section 13; and

(c)

any interest in fishing quota, or rights or interests, of a kind described in section 57D of the Fisheries Act 1996; and

(d)

any rights or interests in securities or property of a kind described in section 82(2)

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

sensitive information means information, but not of a class set out in regulations, that—

(a)

is genetic, biometric, health, or financial information of individuals or relates to the sexual orientation or sexual behaviour of individuals; or

(b)

is official information (as defined in section 2(1) of the Official Information Act 1982 or section 2(1) of the Local Government Official Information and Meetings Act 1987) that is relevant to the maintenance of national security or public order

SIB, or strategically important business, means a business that is 1 or more of the following:

(a)

a business that researches, develops, produces, or maintains military or dual-use technology, but not of a class set out in regulations:

(b)

a business that is a critical direct supplier, but not of a class set out in regulations:

(c)

a business of a class set out in regulations that is involved in ports or airports:

(d)

a business of a class set out in regulations that is involved in electricity generation, distribution, metering, or aggregation:

(e)

a business of a class set out in regulations that is involved in drinking water, waste water, or storm water infrastructure:

(f)

a business of a class set out in regulations that is involved in telecommunications infrastructure or services:

(g)

a business of a class set out in regulations that is a financial institution or is involved in financial market infrastructure:

(h)

a business that is a media business with significant impact:

(i)

in section 20A (relating to transactions of national interest),—

(i)

a business of a class set out in regulations that is involved in an irrigation scheme:

(ii)

any other business of a class set out in regulations that is involved in a strategically important industry or that owns or controls high-risk critical national infrastructure

strategic goods list means the list of all goods and classes of goods whose exportation is prohibited under section 96 of the Customs and Excise Act 2018 because they have or may have a strategic use (within the meaning of section 96(11) of that Act) that the Secretary is required to publish under section 96(7) of that Act

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

transaction of national interest means—

(a)

a transaction of a kind described in section 20A; and

(b)

a transaction that the Minister has identified in a notice given under section 20B

unpublished CDS means a critical direct supplier whose status is not published on the list of critical direct suppliers under section 20D(2)(b)(i)

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 (see subsection (2A)); 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 more than 25% ownership or control interest in another person (B) if A has—

(a)

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

(b)

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

(c)

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

(5)

In this Act, a body corporate (B) is a more than 25% 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 more than 25% of the governing body of B; or

(c)

A is in a position to exercise, or control the exercise of, more than 25% 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).

(9)

In sections 13(1)(c) and 82, references to an acquisition of property do not include the making of a loan or subscription for an interest or right that is 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 (provided that the loan, interest, or right is not convertible into a security within paragraphs (a) to (d) of the definition of security in section 6(1)).

Section 6(1) 25% or more ownership or control interest: repealed, on 16 June 2020, by section 6(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) 25% or more subsidiary: repealed, on 16 June 2020, by section 6(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) call-in transaction: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) control rights: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) critical direct supplier: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) direction order: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) disposal order: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) emergency notification regime: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) estate or interest: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) foreshore, seabed: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) foreshore or seabed: repealed, on 16 June 2020, by section 6(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) give effect to a call-in transaction: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) intelligence or security agency: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) interim direction order: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) investor test factors: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) involved: replaced, on 16 June 2020, by section 6(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) listed issuer: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) long-term accommodation facility paragraph (a)(ii): amended, on 1 August 2020, by section 668 of the Education and Training Act 2020 (2020 No 38).

Section 6(1) managed investment scheme: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) marine and coastal area: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) media business with significant impact: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) military or dual-use technology: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) more than 25% ownership or control interest: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) more than 25% subsidiary: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) New Zealand listed issuer: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) non-NZ government investor: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) Overseas Investment Amendment Act (No 3) 2020: inserted, on 16 June 2020, by section 6(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) overseas investment in SIB assets: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) prohibition order: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) relevant government enterprise: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) relevant government investor: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) relevant land: amended, on 16 June 2020, by section 6(6) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) risk management action: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) section 12 interest: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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 assets: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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) sensitive information: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) SIB, or strategically important business: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) strategic goods list: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) transaction of national interest: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(1) unpublished CDS: inserted, on 16 June 2020, by section 6(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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(2)(a)(iii): amended, on 16 June 2020, by section 6(7) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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(4): amended, on 16 June 2020, by section 6(8) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(4)(a): amended, on 16 June 2020, by section 6(9) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(4)(b): amended, on 16 June 2020, by section 6(9) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(4)(c): amended, on 16 June 2020, by section 6(9) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(5): amended, on 16 June 2020, by section 6(10) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(5)(b): amended, on 16 June 2020, by section 6(11) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 6(5)(c): amended, on 16 June 2020, by section 6(11) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

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).

Section 6(9): inserted, on 16 June 2020, by section 6(12) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

7 Who are overseas persons

(1)

The purpose of this definition is to provide that persons are overseas persons if they themselves are overseas persons (for example, not a New Zealand citizen or ordinarily resident in New Zealand or, for companies, incorporated overseas) or they are more than 25% owned or controlled by an overseas person or persons.

(2)

In this Act, overseas person means—

(a)

an individual who is neither a New Zealand citizen nor ordinarily resident in New Zealand; or

(b)

a body corporate that is incorporated outside New Zealand or is a more than 25% subsidiary of a body corporate incorporated outside New Zealand; or

(c)

a body corporate (A) if an overseas person or persons have—

(i)

more than 25% of any class of A’s securities; or

(ii)

the power to control the composition of more than 25% of A’s governing body; or

(iii)

the right to exercise or control the exercise of more than 25% of the voting power at a meeting of A; or

(d)

a partnership, unincorporated joint venture, or other unincorporated body of persons (other than a trust or unit trust) (A) if—

(i)

more than 25% of A’s partners or members are overseas persons; or

(ii)

an overseas person or persons have a beneficial interest in or entitlement to more than 25% of A’s profits or assets (including on A’s winding up); or

(iii)

an overseas person or persons have the right to exercise or control the exercise of more than 25% of the voting power at a meeting of A; or

(e)

a trust (A) if—

(i)

more than 25% of A’s governing body are overseas persons; or

(ii)

an overseas person or persons have a beneficial interest in or entitlement to more than 25% of A’s trust property; or

(iii)

more than 25% of the persons having the right to amend or control the amendment of A’s trust deed are overseas persons; or

(iv)

more than 25% of the persons having the right to control the composition of A’s governing body are overseas persons; or

(f)

a unit trust (A) if—

(i)

the manager or trustee, or both, are overseas persons; or

(ii)

an overseas person or persons have a beneficial interest in or entitlement to more than 25% of A’s trust property.

Section 7(1): amended, on 16 June 2020, by section 7(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(1): amended, on 22 October 2018, by section 9 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 7(2)(b): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(c)(i): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(c)(ii): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(c)(iii): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(d)(i): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(d)(ii): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(d)(iii): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(e)(i): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(e)(ii): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(e)(iii): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(e)(iv): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 7(2)(f)(ii): amended, on 16 June 2020, by section 7(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

8 Meaning of associate and associated land

(1)

In this Act, a person (A) is an associate of another person (B) in relation to an overseas investment or any other matter if—

(a)

A is controlled by B or is subject to B’s direction:

(b)

A is B’s agent, trustee, or representative, or acts in any way on behalf of B, or is subject to B’s direction, control, or influence, in relation to the overseas investment or the other matter:

(c)

A acts jointly or in concert with B in relation to the overseas investment or the other matter:

(d)

A participates in the overseas investment or the other matter as a consequence of any arrangement or understanding with B:

(e)

A would come within any of paragraphs (a) to (d) if the reference to B in any of those paragraphs were instead a reference to another associate of B.

(2)

If A is an associate of B, B is also an associate of A.

(3)

For the purposes of subsection (1), it does not matter whether the control, direction, power, influence, arrangement, or other relationship between A and B is—

(a)

direct or indirect:

(b)

general or specific:

(c)

legally enforceable or not.

(4)

In this Act, land (land A) is associated land in respect of other land (land B) if—

(a)

land A adjoins land B or, in the case of land on an island listed in Part 2 of Schedule 1, land A and land B are on the same island; and

(b)

a person owns or controls, or will (as the result of any transaction entered into or to be entered into) own or control, (directly or indirectly) an estate or interest in land A (other than an exempted interest); and

(c)

the same person, or an associate of that person, owns or controls, or will (as the result of any transaction entered into or to be entered into) own or control, (directly or indirectly) an estate or interest in land B (other than an exempted interest).

Section 8(4)(b): amended, on 16 June 2020, by section 8 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 8(4)(c): amended, on 16 June 2020, by section 8 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

8A Status of examples

(1)

An example used in this Act is only illustrative of the provisions to which it relates. It does not limit those provisions.

(2)

If an example and a provision to which it relates are inconsistent, the provision prevails.

Section 8A: inserted, on 22 October 2018, by section 10 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Transitional, savings, and related provisions

Heading: inserted, on 22 October 2018, by section 10 of the Overseas Investment Amendment Act 2018 (2018 No 25).

8B Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

Section 8B: inserted, on 22 October 2018, by section 10 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Act binds the Crown

9 Act binds the Crown

This Act binds the Crown.

Part 2 Consent and conditions regime

Subpart 1—When consent required and criteria for consent

When consent required

10 Consent required for overseas investments in sensitive New Zealand assets

(1)

A transaction requires consent under this Act if it will result in—

(a)

an overseas investment in sensitive land (see section 12):

(b)

an overseas investment in significant business assets (see section 13).

(2)

See also sections 56 to 58B of the Fisheries Act 1996, which require consent for a transaction that will result in an overseas investment in fishing quota.

11 Consent must be obtained before overseas investment given effect

(1)

Consent must be obtained for a transaction before the overseas investment is given effect under the transaction.

(2)

The procedure for obtaining consent (including who must obtain consent) is set out in subpart 2.

11A Exemptions from requirement for consent

(1)

The exemptions from the requirement for consent in Schedule 3 have effect.

(2)

See also the exemptions in the regulations.

Section 11A: inserted, on 22 October 2018, by section 11 of the Overseas Investment Amendment Act 2018 (2018 No 25).

What are overseas investments in sensitive New Zealand assets

12 What are overseas investments in sensitive land

An overseas investment in sensitive land is the acquisition by an overseas person, or an associate of an overseas person, of all or any of the following (a section 12 interest):

(a)

an estate or interest in land if

(i)

the land that the estate or interest relates to is sensitive land under Part 1 of Schedule 1; and

(ii)

the estate or interest acquired is a freehold estate or a lease, or any other estate or interest, for a term of 3 years or more (including rights of renewal, whether of the grantor or grantee), and is not an exempted interest; or

(b)

rights or interests in securities of a person (A) if A owns or controls (directly or indirectly) an estate or interest in land described in paragraph (a) and, as a result of the acquisition,—

(i)

the overseas person or the associate (either alone or together with its associates) has a more than 25% ownership or control interest in A; or

(ii)

the overseas person or the associate (either alone or together with its associates) has an increase in an existing more than 25% ownership or control interest in A; or

(iii)

A becomes an overseas person.

Section 12: amended, on 16 June 2020, by section 9(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 12(a): amended, on 16 June 2020, by section 9(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 12(a)(i): replaced, on 16 June 2020, by section 9(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 12(a)(ii): amended, on 16 June 2020, by section 9(4) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 12(b): amended, on 16 June 2020, by section 9(6) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 12(b)(i): amended, on 16 June 2020, by section 9(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 12(b)(ii): amended, on 16 June 2020, by section 9(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

13 What are overseas investments in significant business assets

(1)

An overseas investment in significant business assets is—

(a)

the acquisition by an overseas person, or an associate of an overseas person, of rights or interests in securities of a person (A) if—

(i)

as a result of the acquisition, the overseas person or the associate (either alone or together with its associates) has a more than 25% ownership or control interest in A or an increase in an existing more than 25% ownership or control interest in A; and

(ii)

the value of the securities or consideration provided, or the value of the assets of A or A and its more than 25% subsidiaries, exceeds $100 million or an alternative monetary threshold that applies in accordance with regulations made under section 61A; or

(b)

the establishment by an overseas person, or an associate of an overseas person, of a business in New Zealand (either alone or with any other person) if—

(i)

the business is carried on for more than 90 days in any year (whether consecutively or in aggregate); and

(ii)

the total expenditure expected to be incurred, before commencing the business, in establishing that business exceeds $100 million or an alternative monetary threshold that applies in accordance with regulations made under section 61A; or

(c)

the acquisition by an overseas person, or an associate of an overseas person, of property (including goodwill and other intangible assets) in New Zealand used in carrying on business in New Zealand (whether by 1 transaction or a series of related or linked transactions) if the total value of consideration provided exceeds $100 million or an alternative monetary threshold that applies in accordance with regulations made under section 61A.

(2)

However, an overseas person that was lawfully carrying on business in New Zealand on 15 January 1996 (which was when the Overseas Investment Regulations 1995 came into force) does not require consent for an overseas investment in significant business assets described in subsection (1)(b) if the investment requires consent only because it comes within that paragraph.

Section 13(1)(a)(i): amended, on 16 June 2020, by section 10 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 13(1)(a)(ii): amended, on 16 June 2020, by section 10 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 13(1)(a)(ii): amended, on 30 December 2018, by section 68 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90).

Section 13(1)(b)(ii): amended, on 30 December 2018, by section 68 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90).

Section 13(1)(c): amended, on 30 December 2018, by section 68 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90).

Criteria for consent

14 Approach to criteria for consent

(1)

The relevant Minister or Ministers, in considering whether or not to grant consent to an overseas investment transaction,—

(a)

must have regard to only the criteria and factors that apply to the relevant category of overseas investment under this subpart (subject to this section); and

(b)

may consult with any other person or persons, as the Minister or Ministers think appropriate; and

(c)

must grant consent if satisfied that all of the criteria in section 16 or section 18 (as the case may be) are met; and

(d)

must decline to grant consent if not satisfied that all of the criteria in section 16 or section 18 are met.

(2)

For a transaction that is in more than 1 category of overseas investment, the relevant Ministers must have regard to the criteria that apply to all of the relevant categories.

(3)

However, if the criteria are the same, the relevant Ministers only need to consider the same criteria once (and not consider them under each relevant category).

15 Who are relevant overseas persons, and individuals with control, for overseas investments

(1)

The relevant Minister or Ministers may determine which 1 or more of the following persons is the relevant overseas person for an overseas investment:

(a)

the person making the overseas investment (A), whether A is an overseas person or an associate of an overseas person:

(b)

any associate of A in relation to the overseas investment.

(2)

The relevant Minister or Ministers may determine which 1 or more of the following categories of persons are the individuals with control of the relevant overseas person for an overseas investment:

(a)

the individual or individuals who each have a more than 25% ownership or control interest in the relevant overseas person:

(b)

the member or members of the governing body of the relevant overseas person:

(c)

the individual or body of individuals who the Minister or Ministers consider to have that control (whether directly or indirectly).

Section 15(2)(a): amended, on 16 June 2020, by section 11 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

16 Criteria for consent for overseas investments in sensitive land

(1)

The criteria for an overseas investment in sensitive land are all of the following:

Criteria regardless of type of relevant land

(a)

the investor test is met (unless the overseas investment is exempt from this criterion under subsection (3)):

Criteria if relevant land is exclusively residential and not otherwise sensitive

(b)

if the relevant land is residential (but not otherwise sensitive) land,—

(i)

1 or more of the following tests in Schedule 2 are met:

(A)

the commitment to reside in New Zealand test:

(B)

the increased housing test:

(C)

the non-residential use test:

(D)

the incidental residential use test; or

(ii)

the benefit to New Zealand test is met:

Criteria if relevant land is exclusively non-residential land that is sensitive

(c)

if the relevant land is sensitive (but not residential) land,—

(i)

the relevant overseas person is, or (if that person is not an individual) each of the individuals with control of the relevant overseas person is, a New Zealand citizen, ordinarily resident in New Zealand, or intending to reside in New Zealand indefinitely; or

(ii)

the benefit to New Zealand test is met:

Criteria if relevant land is all residential and some or all is sensitive for some other reason

(d)

if the relevant land is residential land but is not described in paragraph (b),—

(i)

the commitment to reside in New Zealand test is met; or

(ii)

the benefit to New Zealand test is met:

Criteria if some relevant land is residential and some or all is sensitive for some other reason

(e)

if the relevant land is not described in paragraphs (b) to (d), the benefit to New Zealand test is met:

(f)

if the relevant land is or includes farm land, either that farm land or the securities to which the overseas investment relates have been offered for acquisition on the open market to persons who are not overseas persons in accordance with the procedure set out in regulations (unless the overseas investment is exempt from this criterion under section 20):

Additional criteria for transaction of national interest

(g)

if the overseas investment in sensitive land is a transaction of national interest, the Minister has not declined consent to the transaction (see section 20C).

(2)

For the purposes of this section, the investor test is met if the relevant Ministers are satisfied that—

(a)

the relevant overseas person has, or (if that person is not an individual) the individuals with control of the relevant overseas person collectively have, business experience and acumen relevant to that overseas investment; and

(b)

the relevant overseas person has demonstrated financial commitment to the overseas investment; and

(c)

the relevant overseas person is, or (if that person is not an individual) all the individuals with control of the relevant overseas person are, of good character; and

(d)

the relevant overseas person is not, or (if that person is not an individual) each individual with control of the relevant overseas person is not, an individual of a kind referred to in section 15 or 16 of the Immigration Act 2009 (which sections list certain persons not eligible for visas or entry permission under that Act).

(3)

Subsection (1)(a) (the investor test) does not apply to an overseas investment in sensitive land if either of the following circumstances applies:

(a)

Circumstance 1:

(i)

the application for consent is under the commitment to reside in New Zealand test only; and

(ii)

the relevant land is residential (but not otherwise sensitive) land:

(b)

Circumstance 2:

(i)

the application for consent is under the increased housing test only; and

(ii)

the increased housing outcome under the test is to be met by a development described in clause 4(1) of Schedule 3 (large apartment developments); and

(iii)

the estate or interest in land relates to 1 or more new residential dwellings in that development; and

(iv)

the transaction is entered into before the construction of the dwelling is complete.

(4)

See also clause 4(5) of Schedule 2 (which relates to the commitment to reside in New Zealand test and relationship property) for a circumstance in which an individual with control of the relevant overseas person can be disregarded in determining whether the investor test is met.

(5)

See section 19 in relation to subsection (2)(c) and (d).

Section 16(1)(a) heading: inserted, on 16 June 2020, by section 12(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(a): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(b) heading: inserted, on 16 June 2020, by section 12(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(b): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(c) heading: inserted, on 16 June 2020, by section 12(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(c): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(d) heading: inserted, on 16 June 2020, by section 12(4) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(d): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(e) heading: inserted, on 16 June 2020, by section 12(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(e): replaced, on 22 October 2018, by section 12(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(1)(g) heading: inserted, on 16 June 2020, by section 12(6) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(1)(g): inserted, on 16 June 2020, by section 12(6) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(2): replaced, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(3): inserted, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(3)(b)(iii): amended, on 16 June 2020, by section 12(9) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 16(4): inserted, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16(5): inserted, on 22 October 2018, by section 12(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

16A Benefit to New Zealand test
General test

(1)

The benefit to New Zealand test is met if all of the following are met:

(a)

the overseas investment will, or is likely to, benefit New Zealand (or any part of it or group of New Zealanders), as determined by the relevant Ministers under section 17; and

(b)

if the relevant land is or includes non-urban land that, in area (either alone or together with any associated land) exceeds 5 hectares, the relevant Ministers determine that that benefit will be, or is likely to be, substantial and identifiable; and

(c)

if the relevant land is or includes residential land, the relevant Ministers are satisfied that the conditions that the relevant Ministers will impose on the consent in accordance with section 16B will be, or are likely to be, met.

(2)

Subsection (3) applies if the relevant Ministers are satisfied—

(a)

that the relevant land will be, or is likely to be, used exclusively, or nearly exclusively, for forestry activities; and

(b)

that—

(i)

the relevant land is not residential land only; and

(ii)

if the relevant land includes any residential land, the residential land adjoins other land that is included in the relevant land but is not residential land; and

(c)

that the relevant land will not be, or is not likely to be, used, or held for future use, for any residential purposes, except where—

(i)

accommodation is being provided for the purpose only of supporting forestry activities being carried out on the relevant land; and

(ii)

all buildings being used for that accommodation are located on land on which some or all of those forestry activities are being carried out or on land that adjoins land on which some or all of those forestry activities are being carried out; and

(d)

that, whenever a crop of trees is harvested on the relevant land, a new crop will be, or is likely to be, established on the relevant land to replace the crop that is harvested (subject to subsection (7)).

(3)

For the purposes of subsection (1)(a) and (b), the relevant Ministers may assess the benefit to New Zealand (or any part of it or group of New Zealanders) by comparing the expected result of the overseas investment with what is expected to happen in relation to the relevant land if—

(a)

the overseas investment is not given effect to; and

(b)

there were to be no future changes to the ownership or control (direct or indirect) of—

(i)

interests in the relevant land; or

(ii)

rights or interests in securities of persons who own or control (directly or indirectly) interests in the relevant land.

Special test relating to forestry activities

(4)

Regulations may provide that the benefit to New Zealand test is also met if the relevant Ministers are satisfied—

(a)

that the relevant land will be, or is likely to be, used exclusively, or nearly exclusively, for forestry activities; and

(b)

that—

(i)

the relevant land is not residential land only; and

(ii)

if the relevant land includes any residential land, the residential land adjoins other land that is included in the relevant land but is not residential land; and

(c)

that the relevant land will not be, or is not likely to be, used, or held for future use, for any residential purposes, except where—

(i)

accommodation is being provided for the purpose only of supporting forestry activities being carried out on the relevant land; and

(ii)

all buildings being used for that accommodation are located on land on which some or all of those forestry activities are being carried out or on land that adjoins land on which some or all of those forestry activities are being carried out; and

(d)

that any requirements set out in regulations in accordance with subsection (5) will be, or are likely to be, met (subject to subsection (8)); and

(e)

that, whenever a crop of trees is harvested on the relevant land, a new crop will be, or is likely to be, established on the relevant land to replace the crop that is harvested (subject to subsection (7)); and

(f)

if the relevant land is or includes special land and regulations require the special land, or any part of it, to be offered to the Crown, that the special land, or the part of it, has been offered to the Crown in accordance with regulations; and

(g)

that any other requirements set out in regulations are met.

(5)

Regulations may, for the purposes of subsection (4)(d), set out requirements that must be met after the overseas investment is given effect to.

(6)

Requirements set out in regulations for the purposes of subsection (4)(d) may (without limitation) be about 1 or more of the following:

(a)

activities that must, or must not, be carried out on the relevant land:

(b)

the maintenance or protection of things that exist when or before the overseas investment transaction is entered into (including (without limitation) the maintenance of existing arrangements relating to historic heritage, biodiversity, environmental matters, public access, or the supply of logs):

(c)

outcomes that must result from the overseas investment.

Powers not to apply, or to modify, certain requirements

(7)

The relevant Ministers may decide—

(a)

not to apply the requirement set out in subsection (2)(d) or (4)(e) if satisfied that the relevant overseas person (together with the relevant overseas person’s associates) will not have sufficient ownership or control (direct or indirect) of rights in respect of the relevant land to ensure that the requirement will be met:

(b)

to modify the requirement set out in subsection (2)(d) or (4)(e) by not applying the requirement for a part of the relevant land if satisfied that the relevant overseas person (together with the relevant overseas person’s associates) will not have sufficient ownership or control (direct or indirect) of rights in respect of that part of the relevant land to ensure that the requirement will be met for that part of the relevant land.

(8)

The relevant Ministers may decide not to apply, or may modify, any requirement set out in regulations for the purposes of subsection (4)(d) if satisfied that the relevant overseas person (together with the relevant overseas person’s associates) will not have sufficient ownership or control (direct or indirect) of rights in respect of the relevant land to ensure that the requirement will be met.

Definitions

(9)

In this section,—

adjoins includes separated only by a public road (including a motorway or a State highway, and whether or not the road is formed)

forestry activities means any of the following:

(a)

maintaining a crop of trees:

(b)

harvesting a crop of trees:

(c)

establishing a crop of trees

special land means marine and coastal area or a bed of a river or lake.

Section 16A: inserted, on 22 October 2018, by section 13 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 16A(9) special land: amended, on 16 June 2020, by section 13 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

16B Conditions for consents relating to sensitive land that is residential land: benefit to New Zealand test

(1)

This section applies if an application for consent for an overseas investment in sensitive land is being considered under the benefit to New Zealand test and the relevant land is or includes residential land.

(2)

However, this section does not apply where section 16A(3) is being applied or the application is being considered in accordance with section 16A(4) (see instead section 16C).

(3)

If consent is granted, to the extent that the consent relates to the residential land,—

(a)

the relevant Ministers must determine a residential land outcome listed in the table in clause 19 of Schedule 2 as applying to the residential land; and

(b)

the consent must be made subject to the set of conditions for the residential land outcome, subject to any exemptions applying (in each case, as described in the table).

(4)

Consent may be granted on the basis of different residential land outcomes applying for different parts of the residential land (with different sets of conditions imposed for different parts).

Example

A is an overseas person who wants to buy 100% of the shares in what is currently a 100% New Zealand-owned and -controlled company.

The company owns the following sensitive land (and has no other interests in sensitive land):

  • 40 hectares of non-urban land (that is not residential land):

  • residential land where 2 houses are being constructed.

No part of the land is, or will be, used for forestry activities.

Criteria for consent

Because the relevant land is a mix of sensitive (but not residential) land and residential land, section 16(1)(e) applies and (in addition to the other criteria in section 16(1) that apply) the benefit to New Zealand test must be met in relation to all of the relevant land.

Residential land outcomes

Because the relevant land includes residential land, section 16A(1)(c) applies.

A wants to complete and sell one of the houses and live in the other house. A’s application for consent proposes the following residential land outcomes (from the table in clause 19 of Schedule 2) for the residential land:

  • occupation as a main home or residence (on the basis that the commitment to reside in New Zealand test will be met in respect of part of the residential land):

  • increased residential dwellings (for the remaining part of the residential land).

Required conditions

If consent is granted, each part of the residential land will be covered by a set of conditions (see clause 19 of Schedule 2) for the residential land outcomes that the relevant Ministers determine apply.

(See also sections 25A and 25B, in relation to the imposition of conditions generally.)

Section 16B: inserted, on 22 October 2018, by section 13 of the Overseas Investment Amendment Act 2018 (2018 No 25).

16C Conditions for consents relating to sensitive land that will be used for forestry activities

(1)

Subsection (2) applies if an application for consent for an overseas investment in sensitive land is being considered under the benefit to New Zealand test and section 16A(3) is being applied.

(2)

If granted, the consent must be made subject to conditions for the purpose of ensuring that the following requirements will be met:

(a)

the requirements set out in section 16A(2)(a) and (c):

(b)

the requirement set out in section 16A(2)(d), subject to section 16A(7).

(3)

Subsection (4) applies if an application for consent for an overseas investment in sensitive land is being considered under the benefit to New Zealand test in accordance with section 16A(4).

(4)

If granted, the consent must be made subject to conditions for the purpose of ensuring that the following requirements will be met:

(a)

the requirements set out in section 16A(4)(a) and (c):

(b)

the requirements set out in regulations made for the purposes of section 16A(4)(d), subject to section 16A(8):

(c)

the requirement set out in section 16A(4)(e), subject to section 16A(7).

(5)

A condition imposed in relation to the requirement set out in section 16A(2)(d) or (4)(e) may require the replacement of a crop of trees that is harvested to be on a like-for-like basis or on any similar basis.

Section 16C: inserted, on 22 October 2018, by section 13 of the Overseas Investment Amendment Act 2018 (2018 No 25).

17 Factors for assessing benefit of overseas investments in sensitive land

(1)

For the purposes of section 16A(1)(a) and (b) (including where section 16A(3) is being applied), the relevant Ministers—

(a)

must consider all the factors in subsection (2) to determine which factor or factors (or parts of them) are relevant to the overseas investment; and

(b)

must determine whether the criteria in section 16A(1)(a) and (b) (including where section 16A(3) is being applied) are met after having regard to those relevant factors; and

(c)

may, in doing so, determine the relative importance to be given to each relevant factor (or part).

(2)

The factors are the following:

(a)

whether the overseas investment will, or is likely to, result in—

(i)

the creation of new job opportunities in New Zealand or the retention of existing jobs in New Zealand that would or might otherwise be lost; or

(ii)

the introduction into New Zealand of new technology or business skills; or

(iii)

increased export receipts for New Zealand exporters; or

(iv)

added market competition, greater efficiency or productivity, or enhanced domestic services, in New Zealand; or

(v)

the introduction into New Zealand of additional investment for development purposes; or

(vi)

increased processing in New Zealand of New Zealand’s primary products:

(b)

whether there are or will be adequate mechanisms in place for protecting or enhancing existing areas of significant indigenous vegetation and significant habitats of indigenous fauna, for example, any 1 or more of the following:

(i)

conditions as to pest control, fencing, fire control, erosion control, or riparian planting:

(ii)

covenants over the land:

(c)

whether there are or will be adequate mechanisms in place for—

(i)

protecting or enhancing existing areas of significant habitats of trout, salmon, wildlife protected under section 3 of the Wildlife Act 1953, and game as defined in sections 2(1) of that Act (for example, any 1 or more of the mechanisms referred to in paragraph (b)(i) and (ii)); and

(ii)

providing, protecting, or improving walking access to those habitats by the public or any section of the public:

(d)

whether there are or will be adequate mechanisms in place for protecting or enhancing historic heritage within the relevant land, for example, any 1 or more of the following:

(i)

conditions for conservation (including maintenance and restoration) and access:

(ii)

agreement to support the entry on the New Zealand Heritage List/Rārangi Kōrero of any historic place, historic area, wahi tapu, or wahi tapu area under the Heritage New Zealand Pouhere Taonga Act 2014:

(iii)

agreement to execute a heritage covenant:

(iv)

compliance with existing covenants:

(e)

whether there are or will be adequate mechanisms in place for providing, protecting, or improving walking access over the relevant land or a relevant part of that land by the public or any section of the public:

(f)

if the relevant land is or includes foreshore, seabed, or a bed of a river or lake, whether that foreshore, seabed, riverbed, or lakebed has been offered to the Crown in accordance with regulations:

(g)

any other factors set out in regulations.

Section 17(1): amended, on 22 October 2018, by section 14(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 17(1)(b): amended, on 22 October 2018, by section 14(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 17(2)(d)(ii): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).

18 Criteria for overseas investments in significant business assets

(1)

The criteria for an overseas investment in significant business assets are all of the following:

(a)

the relevant overseas person has, or (if that person is not an individual) the individuals with control of the relevant overseas person collectively have, business experience and acumen relevant to that overseas investment:

(b)

the relevant overseas person has demonstrated financial commitment to the overseas investment:

(c)

the relevant overseas person is, or (if that person is not an individual) all the individuals with control of the relevant overseas person are, of good character:

(d)

the relevant overseas person is not, or (if that person is not an individual) each individual with control of the relevant overseas person is not, an individual of a kind referred to in section 15 or 16 of the Immigration Act 2009 (which sections list certain persons not eligible for visas or entry permission under that Act):

(e)

if the overseas investment in significant business assets is a transaction of national interest, the Minister has not declined consent to the transaction (see section 20C).

(2)

See section 19 in relation to subsection (1)(c) and (d).

Section 18(1)(d): substituted, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

Section 18(1)(e): inserted, on 16 June 2020, by section 14(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

19 Applying good character and Immigration Act 2009 criteria

(1)

For the purposes of sections 16(2)(c) and 18(1)(c), the relevant Minister or Ministers must take the following factors into account (without limitation) in assessing whether or not a person (A) is of good character:

(a)

offences or contraventions of the law by A, or by any person in which A has, or had at the time of the offence or contravention, a more than 25% ownership or control interest (whether convicted or not):

(b)

any other matter that reflects adversely on the person’s fitness to have the particular overseas investment.

(2)

For the purposes of sections 16(2)(d) and 18(1)(d), an individual is not an individual of a kind referred to in section 15 or 16 of the Immigration Act 2009 if a special direction referred to in section 17(1)(a) of that Act has been made permitting a visa or entry permission to be granted to that individual.

Section 19 heading: amended, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

Section 19(1): amended, on 22 October 2018, by section 15(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 19(1)(a): amended, on 16 June 2020, by section 7(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 19(2): substituted, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

Section 19(2): amended, on 22 October 2018, by section 15(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

20 Exemptions from farm land offer criterion

Section 16(1)(f) does not apply to an overseas investment if—

(a)

the relevant Ministers consider that the overseas investment need not meet this criterion by reason of the circumstances relating to the particular overseas investment, interest in land, or rights or interests in securities; or

(b)

the overseas person making the overseas investment belongs to a class of overseas persons, or the overseas investment transaction belongs to a class of transactions, that is exempted from this criterion by the relevant Ministers by notice in the Gazette.

Transactions of national interest

Heading: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20A Transactions that are transactions of national interest
Transactions involving non-NZ government investors or SIB

(1)

The following kinds of overseas investment transactions are transactions of national interest:

Investment by non-NZ government investors

(a)

a transaction of a kind described in section 12(a) or 13(1)(c) of this Act, or in section 57D(a) of the Fisheries Act 1996, where, as a result of the acquisition, the relevant estate or interest in land, property, or fishing quota is acquired by a non-NZ government investor:

(b)

a transaction of a kind described in section 12(b)(i) or (ii) or 13(1)(a) of this Act, or in section 57D(b) of the Fisheries Act 1996, where, as a result of the acquisition, a non-NZ government investor has 10% or more ownership or control interest in A:

Investment in strategically important businesses

(c)

a transaction of a kind described in section 12(a) where the estate or interest in land is used in carrying on a SIB:

(d)

a transaction of a kind described in section 12(b)(i) or (ii) or 13(1)(a) where A is carrying on a SIB:

(e)

a transaction of a kind described in section 13(1)(c) where the business is or includes a SIB.

(2)

The Minister must notify an applicant if the Minister considers that an application for consent involves a transaction of the kind set out in subsection (1), unless the applicant has already identified this in their application.

(3)

However, failure to notify an applicant does not affect a transaction’s status as a transaction of national interest and does not invalidate any action taken by the Minister in reliance on a transaction’s status as a transaction of national interest.

(4)

This section is subject to any regulations made under section 127(1).

Section 20A: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20B Other transactions may be transactions of national interest if notice given

(1)

If the Minister considers that any other overseas investment transaction for which an application for consent has been made could be contrary to New Zealand’s national interest, the Minister may notify the applicant in writing that the transaction is a transaction of national interest.

(2)

The person making a decision under section 24 in relation to a particular application cannot exercise the Minister’s power under subsection (1) in relation to that application.

Section 20B: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20C Consent may be declined if transaction contrary to national interest

(1)

The Minister may decline consent to a transaction of national interest if the Minister considers that the transaction is contrary to New Zealand’s national interest.

(2)

The person making a decision under section 24 in relation to a particular application cannot exercise the Minister’s power under subsection (1) in relation to that application.

Section 20C: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20D Who are critical direct suppliers

(1)

The Minister may identify a person as a critical direct supplier if the Minister is satisfied that—

(a)

the person is a direct supplier of goods or services to an intelligence or security agency; and

(b)

the goods or services are integral to the functioning of the agency as an intelligence or security agency; and

(c)

the supply of those goods or services cannot readily be replaced.

(2)

The Minister must—

(a)

notify a person that they are a critical direct supplier; and

(b)

either—

(i)

publish that person’s name in a list of critical direct suppliers on an Internet site maintained by or for the regulator; or

(ii)

if subsection (3) applies, notify the person that they are an unpublished CDS.

(3)

The Minister may defer or dispense with publication if the Minister is satisfied on reasonable grounds that good reason for withholding the publication would exist under the Official Information Act 1982.

(4)

The Minister must—

(a)

notify a person if the person ceases to be a critical direct supplier; and

(b)

if relevant, remove that person’s name from the list of critical direct suppliers on the Internet site maintained by or for the regulator.

Section 20D: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20E Provisions relating to unpublished CDS

(1)

This section applies if a critical direct supplier has been notified that it is an unpublished CDS.

Notice to prospective investors and new investors of status as critical direct supplier

(2)

An unpublished CDS must notify a person of the unpublished CDS’s status as a critical direct supplier as soon as is reasonably practicable after the earlier of—

(a)

the date on which there are reasonable grounds for an unpublished CDS to conclude that the person is likely to become an investor in that unpublished CDS; and

(b)

the date on which an unpublished CDS knows or ought reasonably to know or believes that the person has become an investor in that unpublished CDS.

(3)

A notice under subsection (2) must—

(a)

be in writing; and

(b)

contain any other information specified by the Minister by notice in the Gazette.

Notice to regulator of investment or prospective investment

(4)

An unpublished CDS must notify the regulator that it has given a notice under subsection (2) as soon as is reasonably practicable after the notice under subsection (2) is given.

(5)

A notice under subsection (4) must—

(a)

be in writing; and

(b)

contain any information specified by the Minister by notice in the Gazette; and

(c)

be accompanied by a copy of the notice given under subsection (2).

Contravention is not offence

(6)

A person who fails to comply with this section does not commit an offence for the purposes of section 45.

(7)

In this section, an investor is a person who, under a call-in transaction or a transaction of national interest, acquires sensitive assets that relate to a critical direct supplier.

Section 20E: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20F Status of unpublished CDS confidential

(1)

This section applies to—

(a)

a critical direct supplier who has been notified that it is an unpublished CDS; and

(b)

a person who receives a notice under section 20E; and

(c)

a person to whom the status of an unpublished CDS as a critical direct supplier has been disclosed in confidence, if that person knows the critical direct supplier is an unpublished CDS.

(2)

A person to whom this section applies must not knowingly or recklessly disclose the fact that an unpublished CDS is a critical direct supplier.

(3)

Subsection (2) does not apply to the extent that disclosure is—

(a)

required under section 20E, 23, or 87; or

(b)

otherwise authorised by the regulator.

Section 20F: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20G What are media businesses with significant impact

(1)

A media business with significant impact, in relation to an overseas investment transaction or a call-in transaction, is a business that publishes content, or causes content to be published, if—

(a)

all or a significant part of the business involves the generation or aggregation of content; and

(b)

the business has a significant impact on the plurality of content available to the public or a particular section of the public, either before or as a result of the overseas person’s (or their associate’s) acquisition.

(2)

Content is available to the public or a particular section of the public whether or not—

(a)

a receiver has to pay for the content; or

(b)

a receiver is required to be a subscriber or member of the publishing service; or

(c)

the content is delivered on the demand of a receiver; or

(d)

the content is aimed at particular groups of people (for example, people who are located in a particular area of New Zealand, who have a particular interest, or who speak a particular language).

(3)

In this section,—

content means news, information, or opinion

publish includes to transmit or broadcast by any means (including, but not limited to, Internet sites, applications, and software).

Section 20G: inserted, on 16 June 2020, by section 17 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Subpart 2—Procedure for making an application for consent and for granting consent

21 Application for consent

An application for consent must be made in accordance with this Act and regulations.

22 Who must apply for consent

(1)

The following persons must apply for consent to an overseas investment transaction:

(a)

each overseas person or associate making the overseas investment; and

(b)

if the transaction comes within section 12(b) or section 13(1)(a) because of the issue, buyback, or cancellation of securities, and consent has not been obtained by a person under paragraph (a), the issuer of the securities.

(2)

In addition, the regulator may require any other party to the overseas investment transaction, or any associate of the person referred to in subsection (1)(a) in relation to the overseas investment, to be a party to the application.

23 Requirements for application for consent

(1)

An application for consent must—

(a)

be in writing; and

(b)

be signed by each applicant; and

(c)

contain the information set out in regulations; and

(d)

be accompanied by a statutory declaration verifying that the information contained in the application is true and correct, unless the regulator waives this requirement; and

(e)

be sent to the regulator; and

(f)

be accompanied by the relevant fee, unless this has already been paid.

(2)

The statutory declaration must be made by each applicant or, if an applicant is a body corporate, by an officer of that applicant.

(3)

For the purpose of considering the application, the regulator may, by notice in writing, require the applicant or any other person with information relevant to the application to provide the information specified in the notice and in the form specified by the notice.

(4)

A person required to provide information under subsection (3) must comply with the regulator’s notice within the time, and in the manner, specified in it.

Section 23(1)(c): replaced, on 16 June 2020, by section 18(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 23(4): inserted, on 16 June 2020, by section 18(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

23A Applications for standing consent in advance of transaction

(1)

A person may, in the circumstances set out in Schedule 4, apply for a consent (a standing consent) for 1 or more transactions in respect of 1 or more overseas investments in sensitive land—

(a)

that have not been entered into at the time when the application is made and when the standing consent is granted; and

(b)

that fall within a class of transactions described in the application.

(2)

A standing consent is a consent to give effect to an overseas investment under a transaction for the purposes of section 10(1)(a), subject to Schedule 4.

Section 23A: inserted, on 22 October 2018, by section 16 of the Overseas Investment Amendment Act 2018 (2018 No 25).

24 Who decides application

(1)

An application must be decided,—

(a)

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

(b)

in the case of a business decision, by the Minister:

(c)

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

(d)

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

(2)

However, a Minister or Ministers may delegate the power to decide (see section 32).

25 Granting or refusal of consent

(1)

A consent under this Act may be—

(a)

granted in respect of a proposed or specified transaction, instrument, or person:

(b)

granted in respect of classes of transactions, instruments, or persons that the relevant Minister or Ministers determine:

(c)
[Repealed]

(d)

granted subject to the payment of a bond:

(e)

granted in whole or in part:

(f)

granted retrospectively:

(g)

refused.

(2)

A transaction may not be cancelled under section 29(1)(c) if it has been granted retrospective consent.

Section 25(1)(c): repealed, on 22 October 2018, by section 17 of the Overseas Investment Amendment Act 2018 (2018 No 25).

25A Conditions of consent

(1)

A consent granted under this Act may, in addition to the automatic conditions in sections 25B and 25C and any conditions that this Act requires be imposed on the consent, be made subject to such other conditions (if any) that the relevant Minister or Ministers think appropriate.

(2)

Nothing in this Act limits the discretion of the relevant Minister or Ministers under subsection (1). For example, conditions of a consent may—

(a)

expand on, or be similar to, conditions that this Act requires be imposed on the consent (if any):

(b)

expand on, be similar to, or be the same as conditions that this Act requires be imposed on other consents:

(c)

require the consent holder to dispose of property in certain circumstances (for example, if a condition of consent is breached).

(3)

For the purpose of enforcing a condition, the relevant Minister or Ministers may enter into a contract or deed with an applicant (including a mortgage or other security arrangement).

Section 25A: inserted, on 22 October 2018, by section 18 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 25A(1): amended, on 16 June 2020, by section 19 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

25B Automatic conditions: every overseas investment

It is a condition of every consent, whether or not it is stated in the consent, that—

(a)

the information provided by each applicant to the regulator or the relevant Minister or Ministers in connection with the application was correct at the time it was provided; and

(b)

each consent holder must comply with the representations and plans made or submitted in support of the application and notified by the regulator as having been taken into account when the consent is granted, unless compliance should reasonably be excused.

Section 25B: inserted, on 22 October 2018, by section 18 of the Overseas Investment Amendment Act 2018 (2018 No 25).

25C Automatic condition: every transaction of national interest

It is a condition of every consent relating to a transaction of national interest, whether or not it is stated in the consent, that each consent holder must not, in relation to sensitive assets in which the relevant investment is made, act or omit to act with a purpose or an intention of adversely affecting national security or public order.

Section 25C: inserted, on 16 June 2020, by section 20 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

26 Minister may revoke consent in case of fraud

The Minister may revoke a consent for an overseas investment transaction before the overseas investment has been given effect if, in the Minister’s opinion, the consent has been obtained by fraud.

27 Consent may be varied by agreement

(1)

A consent granted under this Act may be varied by the relevant Minister or Ministers with the agreement of the consent holder.

(2)

Any conditions of a consent may be varied or added to by the relevant Minister or Ministers with the agreement of the consent holder.

(3)

A condition of a consent may be revoked by the relevant Minister or Ministers.

(3A)

Subsection (3) does not apply in respect of a condition that this Act required to be imposed but the relevant Ministers may, with the agreement of the consent holder, vary the condition (for example, by varying the specified period within which a matter must occur).

(4)

An application for variation of a consent or a condition of a consent may be made by written notice to the regulator accompanied by the fee required by regulations.

Section 27(3A): inserted, on 22 October 2018, by section 19 of the Overseas Investment Amendment Act 2018 (2018 No 25).

27A Consent holder may apply for new consent

(1)

This section applies to a consent for a transaction that is subject to 1 or more conditions that this Act required to be imposed in relation to the consent.

(2)

The holder of the consent may apply for a new consent for the transaction.

(3)

The application must be made on the basis that any overseas investments that have resulted from the transaction are instead to be treated as if they will be given effect to on a future date specified or determined in accordance with the application.

(4)

The relevant Ministers—

(a)

must consider the application in accordance with section 14; and

(b)

may grant the new consent if satisfied that all of the applicable criteria are met.

(5)

Despite subsection (3), if the application asks for the benefit to New Zealand test to be applied to any overseas investment, the relevant Ministers may—

(a)

assess the benefit to New Zealand (or any part of it or group of New Zealanders) by comparing the expected result of the overseas investment from the date on which the overseas investment was actually given effect to:

(b)

otherwise apply (wholly or partly) any provision of sections 16A to 16C as they would have done had they been considering the application at the time of the original application for consent for the transaction.

(6)

If the relevant Ministers grant the new consent, the new consent (including its conditions) replaces the previous consent (including its conditions) with effect from the start of—

(a)

the date referred to in subsection (3); or

(b)

if later, the date after the date on which the new consent is granted.

Section 27A: inserted, on 22 October 2018, by section 20 of the Overseas Investment Amendment Act 2018 (2018 No 25).

28 Conditions of consent
[Repealed]

Section 28: repealed, on 22 October 2018, by section 21 of the Overseas Investment Amendment Act 2018 (2018 No 25).

29 Transaction may be cancelled

(1)

A transaction for which consent is required under this Act and under which the overseas investment has been given effect without that consent—

(a)

is not an illegal contract for the purposes of subpart 5 of Part 2 of the Contract and Commercial Law Act 2017; and

(b)

is not void only because the overseas investment has been given effect to without the requisite consent or because giving effect to the overseas investment without the requisite consent is an offence; but

(c)

may be cancelled by—

(i)

a party to the transaction who was not required to obtain consent to the transaction under this Act, by giving notice in writing to all the other parties; or

(ii)

the court, on the application of the regulator.

(2)

On cancellation under this section,—

(a)

the court has the same powers as it has under sections 43 to 48 of the Contract and Commercial Law Act 2017; and

(b)

if the court orders the cancellation on the regulator’s application, the court may also make any other order necessary to give effect to the cancellation.

Section 29(1)(a): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 29(2)(a): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Subpart 3—Administration

30 Regulator

(1)

The regulator is the chief executive of the department that for the time being is designated by the Minister by notice in writing to the chief executive as the regulating department.

(2)

The Minister may at any time by notice in writing to the chief executive revoke the designation of his or her department as the regulating department.

31 What regulator does

The regulator’s functions are to—

(a)

consider each application and advise the relevant Minister or Ministers on how the application should be determined:

(b)

exercise any of the powers or functions that have been delegated to him or her under this Act or regulations:

(c)

in relation to an application, consult as the regulator thinks appropriate:

(d)

monitor compliance with consents or orders made under this Act:

(e)

issue guidelines when necessary:

(f)

compile and keep records relating to applications, for example, the number of applications in a particular year:

(g)

compile and make available statistics relating to applications:

(h)

provide general information for the benefit of applicants for consent about New Zealand’s overseas investment rules:

(ha)

do the following:

(i)

monitor compliance with this Act and the regulations:

(ii)

investigate conduct that constitutes or may constitute a contravention, or an involvement in a contravention, of this Act or the regulations:

(iii)

investigate conduct that constitutes or may constitute an offence under this Act:

(iv)

enforce this Act and the regulations:

(i)

do anything else that is necessary for the efficient operation of the rules relating to overseas investment in sensitive New Zealand assets or the management of certain risks, such as national security and public order risks, associated with transactions by overseas persons.

Section 31(d): replaced, on 16 June 2020, by section 21(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 31(ha): inserted, on 22 October 2018, by section 22 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 31(i): amended, on 16 June 2020, by section 21(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

32 Delegation by relevant Minister or Ministers

(1)

The relevant Minister or Ministers may delegate to the regulator or any other person any of his or her or their powers or functions under this Act or regulations (including this power of delegation).

(2)

However, the following cannot be delegated in accordance with subsection (1):

(a)

a decision under section 20B to advise an applicant that a transaction is a transaction of national interest:

(b)

a decision under section 20C that a transaction of national interest is contrary to New Zealand’s national interest:

(c)

a decision under section 88, 90, 92, 93, or 96 that a call-in transaction, or an event, or the actions of an overseas person or their associate, gives rise, or is likely to give rise, to a risk referred to in section 81:

(d)

a decision under section 92, 93, or 96 that a risk referred to in section 81 cannot be adequately managed in another manner or that the risk is too significant to allow a transaction to be given effect to.

(3)

See also section 20B(2) or 20C(2) (a person making a decision under section 24 cannot also exercise the Minister’s power under section 20B(1) or 20C(1)).

Section 32(2): inserted, on 16 June 2020, by section 22 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 32(3): inserted, on 16 June 2020, by section 22 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

33 Rules that apply to delegation under this Act or regulations

(1)

The delegation—

(a)

must be in writing:

(b)

in the case of delegation by the Minister, may (but does not have to) be made in a Ministerial directive letter:

(c)

may be made generally or in relation to any particular matter or class of matters:

(d)

may be made to—

(i)

a specified person; or

(ii)

persons of a specified class; or

(iii)

the holder for the time being of a specified office or appointment; or

(iv)

the holders of offices or appointments of a specified class:

(e)

may be revoked at any time.

(2)

The delegation may be made subject to any conditions or restrictions that the delegator thinks appropriate.

(3)

Subject to any general or special directions or conditions or restrictions given or imposed by the delegator, the person to whom a power or function is delegated may exercise that power or function in the same way and with the same effect as if it had been conferred directly by this Act or regulations and not by delegation.

(4)

A person who purports to act under a delegation is presumed to act in accordance with the terms of the delegation, unless the contrary is proved.

(5)

A delegation does not prevent the delegator from exercising the power or function that has been delegated.

34 Ministerial directive letter

(1)

The Minister may direct the regulator by a Ministerial directive letter, and the regulator must comply with it.

(2)

Subsection (1) applies even if the subject matter of the Ministerial directive letter relates to a power that has been delegated to the regulator.

(3)

A Ministerial directive letter may direct the regulator about the following things:

(a)

the Government’s general policy approach to overseas investment in sensitive New Zealand assets, including the relative importance of different criteria or factors in relation to particular assets:

(b)

the asset types, value thresholds, and area thresholds over which the regulator has power to make decisions:

(ba)

conditions of consents or direction orders, including conditions that this Act requires be imposed:

(c)

the level of monitoring required in relation to conditions of consent:

(d)

the criteria for including reserves, public parks, or other sensitive areas on the list kept by the regulator under section 37:

(e)

any general or specific matter relating to the regulator’s functions, powers, or duties.

Section 34(3)(ba): replaced, on 16 June 2020, by section 23 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

35 Ministerial directive letter must be published, etc

Each Ministerial directive letter must be published in the Gazette and presented to the House of Representatives within 6 sitting days after it was sent to the regulator.

36 Regulator may issue guidelines

(1)

The regulator may issue guidelines about the following things:

(a)

the offer of foreshore, seabed, riverbed, or lakebed to the Crown:

(b)

offer requirements for farm land:

(c)

monitoring compliance with conditions of consent:

(d)

the level of information that must be provided in an application:

(e)

the criteria to be taken into account in deciding whether an overseas person intends to reside in New Zealand indefinitely:

(ea)

matters relating to the national interest, national security, public order, and risk management actions:

(f)

any other matters relating to applications, the criteria and consent process, and the rules on overseas investment in sensitive New Zealand assets.

(2)

The regulator must not issue a guideline unless it has first been approved by the Minister.

Section 36(1)(ea): inserted, on 16 June 2020, by section 24 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

37 Regulator must keep list of reserves, parks, and other sensitive areas

(1)

The regulator must—

(a)

compile and keep a list of reserves and public parks, and other areas described in subsection (2), for which the adjoining land is sensitive under table 2 in Part 1 of Schedule 1; and

(b)

publish that list on a website maintained by or for the regulator.

(2)

Other areas of land may be included in the list only if they are held under statute and have a primary purpose, by or under statute, relating to—

(a)

protecting natural and physical resources or historic heritage; or

(b)

providing public access to natural and physical resources or historic heritage.

(3)

The list may set out the reserves, public parks, and other areas specifically or by class.

(4)

The regulator may amend that list.

37A Regulator must publish list of sensitive adjoining land relating to collective group of Māori

(1)

This section applies for the purposes of the standing consent in Part 4 of Schedule 1AA and of Schedule 1 (after Schedule 1 is amended by the Overseas Investment Amendment Act (No 3) 2020).

(2)

The regulator must—

(a)

compile and keep a list of land and reserves for which the adjoining land is sensitive under rows 10 and 11 of table 2 in Part 1 of Schedule 1; and

(b)

publish that list on an Internet site maintained by or for the regulator.

(3)

The regulator may amend that list.

Section 37A: inserted, on 16 June 2020, by section 25 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

37B Time frames

(1)

The Governor-General may, by Order in Council, make regulations—

(a)

setting time frames for the exercise of powers, performance of functions and duties, and provision of services under this Act:

(b)

requiring information to be included in the annual report of the regulator about the extent to which those time frames are met.

(2)

The time frames do not create any legal right enforceable in a court of law or affect or limit the way in which a person (for example, a Minister or the regulator) is required to exercise a statutory power of decision.

(3)

In particular, no form of monetary compensation or relief, or injunctive relief, is available as a remedy if the time frames are not met.

Section 37B: inserted, on 16 June 2020, by section 25 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Subpart 4—Information-gathering powers

Heading: replaced, on 22 October 2018, by section 30 of the Overseas Investment Amendment Act 2018 (2018 No 25).

38 Regulator may require person to provide information for monitoring purposes

(1)

For the purpose of monitoring compliance with the terms or conditions of a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order, the regulator may, by notice in writing, require a person (A) who is required to comply with any of the terms or conditions to provide the regulator with the information or documents (or both) that are specified in the notice.

(2)

A must—

(a)

comply with the regulator’s notice within the time, and in the manner, specified in it; and

(b)

certify that the information provided to the regulator, including information contained in any documents provided, is correct.

(3)

The regulator may retain or copy any information or document that is provided under this section.

Section 38: replaced, on 22 October 2018, by section 31 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 38 heading: amended, on 16 June 2020, by section 26(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 38(1): replaced, on 16 June 2020, by section 26(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

39 Regulator may require any person to provide information for statistical or monitoring purposes

(1)

The regulator may, by notice in writing, require any person with information relevant to overseas investments in sensitive New Zealand assets or call-in transactions to provide the regulator with the information specified in the notice for the purpose of—

(a)

compiling statistical information relating to overseas investment in New Zealand; or

(b)

monitoring compliance with a term or condition of a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order.

(2)

The person must—

(a)

comply with the regulator’s notice within the time, and in the manner, specified in it; and

(b)

provide the information in the form specified in the notice.

(3)

The regulator may retain or copy any information that is provided under this section.

Section 39(1): amended, on 16 June 2020, by section 27(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 39(1)(b): replaced, on 16 June 2020, by section 27(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 39(2)(a): amended, on 22 October 2018, by section 32(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

40 Regulator may require person to provide statutory declaration as to compliance

(1)

The regulator may, by notice in writing, require a person (A) who is required to comply with a term or condition of a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order to provide the regulator with a statutory declaration verifying—

(a)

the extent to which A has complied with the term or condition; and

(b)

if A is in breach of a term or condition, the reasons for the breach and the steps that A intends to take to remedy the breach.

(2)

A must provide the declaration—

(a)

within the time, and in the manner, specified in the notice; or

(b)

if the notice specifies that A must provide the declaration at intervals, at those intervals.

(3)

A declaration that is made under this section is not admissible in evidence in any proceedings under this Act except proceedings under section 46.

Section 40: replaced, on 22 October 2018, by section 33 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 40 heading: amended, on 16 June 2020, by section 28(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 40(1): replaced, on 16 June 2020, by section 28(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

41 Regulator may require information and documents to be provided

(1)

If the regulator has reasonable grounds to believe that it is necessary or desirable for 1 or more of the purposes set out in subsection (1A), the regulator may, by written notice, require any person (A)—

(a)

to provide to the regulator, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or

(b)

to provide to the regulator any document or class of documents specified in the notice (within the time and in the manner specified in the notice); or

(c)

if necessary, to reproduce, or assist in reproducing, in usable form, information recorded or stored in any document or class of documents specified in the notice (within the time and in the manner specified in the notice).

(1A)

The purposes are as follows:

(a)

monitoring compliance with this Act or the regulations (or both):

(aa)

investigating whether a transaction is an overseas investment transaction or a call-in transaction:

(ab)

investigating whether a transaction, an event, or a matter is contrary to the national interest or gives rise to, or is likely to give rise to, a significant risk to national security or public order:

(b)

investigating conduct that constitutes or may constitute a contravention, or an involvement in a contravention, of this Act or the regulations (or both):

(c)

investigating conduct that constitutes or may constitute an offence under this Act:

(d)

enforcing this Act or the regulations (or both).

(2)

A must comply with the regulator’s notice within the time, and in the manner, specified in it.

(3)

[Repealed]

(4)

The regulator may retain or copy any information or document that is provided under this section.

(5)

Sections 38 to 40 do not limit this section.

Section 41 heading: amended, on 16 June 2020, by section 29(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 41 heading: amended, on 22 October 2018, by section 34(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 41(1): replaced, on 22 October 2018, by section 34(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 41(1A): inserted, on 22 October 2018, by section 34(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 41(1A)(aa): inserted, on 16 June 2020, by section 29(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 41(1A)(ab): inserted, on 16 June 2020, by section 29(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 41(2): amended, on 22 October 2018, by section 34(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 41(3): repealed, on 22 October 2018, by section 34(4) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 41(5): inserted, on 22 October 2018, by section 34(5) of the Overseas Investment Amendment Act 2018 (2018 No 25).

41A Privileges for person required to provide information or document

A person who is required to provide information or a document under any of sections 38 to 41 has the same privileges in relation to the provision of the information or document as witnesses have in any court.

Section 41A: inserted, on 22 October 2018, by section 35 of the Overseas Investment Amendment Act 2018 (2018 No 25).

41B Effect of proceedings

(1)

If a person commences a proceeding in any court in respect of the exercise of any powers conferred by any of sections 38 to 41, until a final decision in relation to the proceeding is given,—

(a)

the powers may be, or may continue to be, exercised as if the proceeding had not been commenced; and

(b)

no person is excused from fulfilling the person’s obligations under any of those sections by reason of the proceeding.

(2)

However, the court may make an interim order overriding the effect of subsection (1), but only if the court is satisfied that—

(a)

the applicant has established a prima facie case that the exercise of the power in question is unlawful; and

(b)

the applicant would suffer substantial harm from the exercise or discharge of the power or obligation; and

(c)

if the power or obligation is exercised or discharged before a final decision is made in the proceeding, none of the remedies specified in subsection (3), or any combination of those remedies, could subsequently provide an adequate remedy for that harm; and

(d)

the terms of the order do not unduly hinder or restrict the regulator in performing or exercising the regulator’s functions, powers, or duties under this Act.

(3)

The remedies are as follows:

(a)

any remedy that the court may grant in making a final decision in relation to the proceeding (for example, a declaration):

(b)

any damages that the applicant may be able to claim in concurrent or subsequent proceedings:

(c)

any opportunity that the applicant may have, as defendant in a proceeding, to challenge the admissibility of any evidence obtained as a result of the exercise or discharge of the power or obligation.

Compare: 2011 No 5 s 57

Section 41B: inserted, on 22 October 2018, by section 35 of the Overseas Investment Amendment Act 2018 (2018 No 25).

41C Effect of final decision that exercise of powers under sections 38 to 41 unlawful

(1)

This section applies in any case where it is declared, in a final decision given in any proceeding in respect of the exercise of any powers conferred by any of sections 38 to 41, that the exercise of any powers conferred by any of those sections is unlawful.

(2)

If this section applies, to the extent to which the exercise of those powers is declared unlawful, the regulator must ensure that, immediately after the decision of the court is given,—

(a)

any information obtained as a consequence of the exercise of powers declared to be unlawful and any record of that information are destroyed; and

(b)

any documents, or extracts from documents, that are obtained as a consequence of the exercise of powers declared to be unlawful are returned to the person who previously had possession or control of them, and any copies of those documents or extracts are destroyed; and

(c)

any information derived from or based on such information, documents, or extracts is destroyed.

(3)

However, the court may order that any information, record, or copy of any document or extract from a document may, instead of being destroyed, be retained by the regulator subject to any terms and conditions that the court imposes.

(4)

No information, and no documents or extracts from documents, obtained as a consequence of the exercise of any powers declared to be unlawful, and no record of any such information or document,—

(a)

are admissible as evidence in any civil proceeding unless the court hearing the proceeding in which the evidence is sought to be adduced is satisfied that there was no unfairness in obtaining the evidence:

(b)

are admissible as evidence in any criminal proceeding if the evidence is excluded under section 30 of the Evidence Act 2006:

(c)

may otherwise be used in connection with the exercise of any powers conferred by this Act unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence.

Compare: 2011 No 5 s 58

Section 41C: inserted, on 22 October 2018, by section 35 of the Overseas Investment Amendment Act 2018 (2018 No 25).

41D Confidentiality of information and documents

(1)

This section applies to the following information and documents:

(a)

information and documents supplied or disclosed to, or obtained by, the regulator under section 41:

(b)

information derived from information and documents referred to in paragraph (a).

(2)

The regulator must not publish or disclose any information or document to which this section applies unless—

(a)

the information or document is available to the public under any enactment or is otherwise publicly available; or

(b)

the information is in a statistical or summary form; or

(c)

the publication or disclosure of the information or document is for the purposes of, or in connection with, the performance or exercise of any function, power, or duty conferred or imposed on a Minister or Ministers or the regulator by this Act or any other enactment; or

(d)

the publication or disclosure of the information or document is made to a law enforcement or regulatory agency for the purposes of, or in connection with, the performance or exercise of any function, power, or duty conferred or imposed on the law enforcement or regulatory agency by any enactment; or

(e)

the publication or disclosure of the information or document is to a person who the regulator is satisfied has a proper interest in receiving the information or document; or

(f)

the publication or disclosure of the information or document is with the consent of the person to whom the information or document relates or of the person to whom the information or document is confidential.

(3)

In relation to personal information, this section applies subject to the Privacy Act 1993.

Compare: 2011 No 5 s 59

Section 41D: inserted, on 22 October 2018, by section 35 of the Overseas Investment Amendment Act 2018 (2018 No 25).

41E Conditions relating to publication or disclosure of information or documents

(1)

The regulator may, by written notice to a person to whom any information or document is published or disclosed under section 41D(2)(c) to (f), impose any conditions in relation to the publication, disclosure, or use of the information or document by the person.

(2)

The regulator must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of an individual.

(3)

Conditions imposed under subsection (1) may include, without limitation, conditions relating to—

(a)

maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 1993):

(b)

the storing of, the use of, or access to anything provided:

(c)

the copying, returning, or disposing of copies of documents provided.

(4)

A person who refuses or fails, without reasonable excuse, to comply with any conditions commits an offence and is liable on conviction to a fine not exceeding $200,000.

Compare: 2011 No 5 s 60

Section 41E: inserted, on 22 October 2018, by section 35 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Subpart 5—Enforcement

Disposal of property

Heading: inserted, on 22 October 2018, by section 36 of the Overseas Investment Amendment Act 2018 (2018 No 25).

41F Regulator may issue notice requesting disposal of property

(1)

This section applies if the regulator has reasonable grounds to believe that a person (A) has, in relation to property,—

(a)

contravened this Act; or

(b)

committed an offence under this Act; or

(c)

failed to comply with a condition of a consent or of an exemption.

(2)

The regulator may, by notice in writing,—

(a)

ask A to dispose of the property (within the time and in the manner specified in the notice for the purposes of this paragraph); and

(b)

require A, if A wants to rely on section 41G(1), to notify the regulator of that fact (within the time and in the manner specified in the notice for the purposes of this paragraph).

(3)

The time specified in the notice for the purposes of subsection (2)(a) must not be less than 90 days after the date on which the notice is given (but this does not limit the power to specify any time under subsection (2)(b)).

(4)

The notice must set out the regulator’s belief and the reasonable grounds for that belief.

(5)

The regulator may withdraw a notice at any time before A does both of the following:

(a)

disposes of the property within the time and in the manner specified in the notice under subsection (2)(a); and

(b)

complies with subsection (2)(b) within the time and in the manner specified in the notice under that paragraph.

(6)

This section does not limit any other power that the regulator has.

(7)

In this section and section 41G, property has the meaning set out in section 47(3).

Section 41F: inserted, on 22 October 2018, by section 36 of the Overseas Investment Amendment Act 2018 (2018 No 25).

41G Consequences of disposal or retention of property

(1)

A person (A) is not liable for the contravention, offence, or failure referred to in section 41F(1) if A—

(a)

disposes of the property within the time and in the manner specified in the notice under section 41F(2)(a); and

(b)

complies with section 41F(2)(b) within the time and in the manner specified in the notice under that paragraph.

(2)

Subsection (1) does not apply if, in connection with the property, A has—

(a)

made any statement that is false or misleading in any material particular or any material omission in—

(i)

any offer or representation made for the purposes of this Act or regulations; or

(ii)

any information or document provided to the regulator; or

(iii)

any communication with the regulator; or

(b)

provided the regulator with a document that is false or misleading in any material particular.

(3)

If another person (B) is involved in the contravention, offence, or failure referred to in section 41F(1), B may be ordered to pay a civil pecuniary penalty under section 48 even though A is not liable under subsection (1).

(4)

See also Part 4 of the Crimes Act 1961, which relates to parties to the commission of offences.

(5)

The regulator may take any other enforcement action it thinks fit in relation to the contravention, offence, or failure referred to in section 41F(1) if—

(a)

A fails to notify the regulator under section 41F(2)(b) within the time and in the manner specified in the notice under that paragraph; or

(b)

A does not dispose of the property within the time and in the manner specified in the notice under section 41F(2)(a).

(6)

However, the failure to comply with the notice under section 41F is not itself a contravention of this Act that gives rise to any civil or criminal liability.

Section 41G: inserted, on 22 October 2018, by section 36 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 41G(3): amended, on 16 June 2020, by section 30 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Offences

42 Offence of giving effect to overseas investment without consent

(1)

A person who is required to apply for consent to an overseas investment transaction commits an offence if that person gives effect to the overseas investment without the consent required by this Act.

(2)

A person who commits an offence under subsection (1) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:

(b)

in any other case, to a fine not exceeding $300,000.

(3)

In imposing a penalty under subsection (2), the court must, if the transaction resulted in an overseas investment in fishing quota and the fishing quota or an interest in it has been forfeited under section 58 or section 58A of the Fisheries Act 1996, have regard to the effect of the forfeiture on the defendant.

Section 42(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 42(2)(b): amended, on 16 June 2020, by section 31 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

43 Offence of defeating, evading, or circumventing operation of Act

(1)

Every person commits an offence who knowingly or recklessly enters into a transaction, executes an instrument, or takes any other step, for the purpose of, or having the effect of, in any way, directly or indirectly, defeating, evading, or circumventing the operation of this Act.

(2)

A person who commits an offence under subsection (1) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:

(b)

in any other case, to a fine not exceeding $300,000.

Section 43(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 43(2)(b): amended, on 16 June 2020, by section 32 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

44 Offence of resisting, obstructing, or deceiving

(1)

Every person commits an offence who resists, obstructs, or deceives any person who is exercising or attempting to exercise any power or function under this Act or regulations.

(2)

A person who commits an offence under subsection (1) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:

(b)

in any other case, to a fine not exceeding $300,000.

Section 44(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 44(2)(b): amended, on 16 June 2020, by section 33 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

45 Offence of failing to comply with notice, requirement, or condition

(1)

Every person commits an offence who, without lawful excuse, fails to comply with—

(a)

this Act or regulations; or

(b)

a notice, requirement, or condition given or imposed under this Act or regulations.

(2)

A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $100,000.

(3)

[Repealed]

Section 45(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 45(3): repealed, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

46 Offence of false or misleading statement or omission

(1)

Every person commits an offence who knowingly or recklessly makes any statement that is false or misleading in a material particular or any material omission in—

(a)

any offer or representation made for the purposes of this Act or regulations; or

(aa)

any statement made under section 51A; or

(ab)

any notice under section 85; or

(b)

any information or document provided to the regulator; or

(c)

any communication with the regulator.

(2)

Every person commits an offence who knowingly or recklessly provides the regulator with a document that is false or misleading in a material particular.

(3)

A person who commits an offence under subsection (1) or subsection (2) is liable on conviction to a fine not exceeding $300,000.

(4)

[Repealed]

Section 46(1): amended, on 22 October 2018, by section 37(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 46(1)(aa): inserted, on 22 October 2018, by section 37(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 46(1)(ab): inserted, on 16 June 2020, by section 34 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 46(2): amended, on 22 October 2018, by section 37(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 46(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 46(4): repealed, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Enforceable undertakings

Heading: inserted, on 16 June 2020, by section 35 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

46A Regulator may accept undertakings

(1)

The regulator may accept an enforceable undertaking given by, or on behalf of, a person in writing in connection with a matter relating to a contravention or an alleged contravention by the person of this Act or regulations (including any matter referred to in section 48(1)).

(2)

An undertaking may include—

(a)

an undertaking to pay compensation to any person or otherwise take action to avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention or possible contravention of this Act:

(b)

an undertaking to pay to the regulator all or part of the regulator’s costs incurred in investigating, or bringing proceedings in relation to, a contravention or an alleged contravention.

(3)

However, the regulator may not accept an undertaking to pay an amount in lieu of a civil pecuniary penalty (for example, a donation to a charity that is not connected with any loss).

(4)

An undertaking may include an admission of liability by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates, but otherwise does not constitute an admission of liability.

Compare: 2015 No 70 s 123

Section 46A: inserted, on 16 June 2020, by section 35 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

46B When undertaking is enforceable

(1)

The regulator must give the person making an undertaking written notice of—

(a)

its decision to accept or reject the undertaking; and

(b)

the reasons for the decision.

(2)

An enforceable undertaking takes effect and becomes enforceable when the regulator’s decision to accept the undertaking is given to the person who made the undertaking, or at any later date specified by the regulator.

(3)

A person must not contravene an enforceable undertaking given by that person that is in force.

Compare: 2015 No 70 ss 124(1), 125

Section 46B: inserted, on 16 June 2020, by section 35 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

46C Notice of decision

(1)

The regulator must publish, on an Internet site maintained by, or on behalf of, the regulator, notice of the decision to accept an enforceable undertaking.

(2)

The notice must include—

(a)

a summary of the circumstances and nature of the contravention or alleged contravention of this Act or regulations to which the undertaking relates:

(b)

a summary of the reasons for that decision:

(c)

any amounts payable under the undertaking.

(3)

Alternatively, the notice may include a copy of the undertaking if the undertaking contains all of the information in subsection (2).

Compare: 2015 No 70 s 124(2)

Section 46C: inserted, on 16 June 2020, by section 35 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

46D Withdrawal or variation of enforceable undertaking

(1)

A person who has given an enforceable undertaking may at any time, with the written agreement of the regulator,—

(a)

withdraw the undertaking; or

(b)

vary the undertaking.

(2)

However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act or regulations.

(3)

The regulator must publish on an Internet site maintained by, or on behalf of, the regulator notice of the withdrawal or variation of an enforceable undertaking.

Compare: 2015 No 70 s 128

Section 46D: inserted, on 16 June 2020, by section 35 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

46E Proceedings for alleged contravention

(1)

No proceedings may be brought for a contravention or an alleged contravention of this Act or regulations against—

(a)

a person who made an undertaking in relation to that contravention, while the undertaking is enforceable and there is no contravention of the undertaking:

(b)

a person who made, and has completely discharged, an enforceable undertaking in relation to that contravention.

(2)

The regulator may accept an enforceable undertaking in relation to a contravention or an alleged contravention before proceedings in relation to that contravention have been completed.

(3)

If the regulator accepts an enforceable undertaking before the proceedings are completed, the regulator must take all reasonable steps to have the proceedings discontinued as soon as practicable.

Compare: 2015 No 70 s 129

Section 46E: inserted, on 16 June 2020, by section 35 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

46F Contravention of enforceable undertaking

(1)

The regulator may apply to the court for an order if a person contravenes an enforceable undertaking.

(2)

If the court is satisfied that the person who made the enforceable undertaking has contravened the undertaking, the court may make any of the following orders:

(a)

a civil pecuniary penalty not exceeding $50,000 for an individual or $300,000 in any other case:

(b)

an order directing the person to comply with the undertaking:

(c)

an order discharging the undertaking.

(3)

In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including—

(a)

orders directing the person to pay to the regulator the costs of the proceedings and the reasonable costs of the regulator in monitoring compliance with the enforceable undertaking in the future:

(b)

an order in respect of the contravention or alleged contravention of this Act or regulations to which the enforceable undertaking relates, as if no undertaking had been made.

Compare: 2015 No 70 s 127

Section 46F: inserted, on 16 June 2020, by section 36 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

46G Considerations for court orders

The court must, before making an order under section 46F, take into account—

(a)

the nature and extent of the contravention; and

(b)

any loss or damage caused by the contravention; and

(c)

any financial gain made, or loss avoided, from the contravention; and

(d)

the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence); and

(e)

the purpose of this Act; and

(f)

any other matters that it considers relevant.

Section 46G: inserted, on 16 June 2020, by section 36 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Powers of court

47 Court may order disposal of property

(1)

This section applies if the court is satisfied that a person (A) has, in relation to property,—

(a)

contravened this Act; or

(b)

committed an offence under this Act; or

(c)

failed to comply with a notice under section 38 or section 39 or section 40 or section 41; or

(d)

failed to comply with a condition of a consent, an exemption, or a direction order.

(2)

The court may, on the application of the regulator,—

(a)

order the disposal of the property (whether by A or by some other person appointed by the court, for example, the regulator); and

(b)

make any other order or give any direction that is necessary to give effect to an order under paragraph (a).

(3)

In this section, property means—

(a)

a right or interest in any security; or

(b)

an estate or interest in land; or

(c)

an interest in fishing quota; or

(d)

any other property or any rights or interests in any other property.

Section 47(1)(d): amended, on 16 June 2020, by section 37(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 47(3)(b): amended, on 16 June 2020, by section 37(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

48 Court may order person in breach or involved in breach to pay civil pecuniary penalty

(1)

On the application of the regulator, the court may order a person (A) to pay a civil pecuniary penalty to the Crown or any other person specified by the court if A has—

(a)

contravened this Act; or

(b)

committed an offence under this Act; or

(c)

failed to comply with a notice under section 38 or section 39 or section 40 or section 41; or

(d)

failed to comply with a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order; or

(e)

been involved in a contravention of this Act, the commission of an offence under this Act, or a failure to comply referred to in paragraph (c) or (d).

(2)

The court may order A to pay a civil pecuniary penalty not exceeding the highest of the following:

(a)

$500,000 in the case of an individual or $10 million in any other case:

(b)

3 times the amount of any quantifiable gain (for example, the increase in the value since acquisition) by A in relation to the property to which the consent, exemption, exemption certificate, direction order, interim direction order, prohibition order, or disposal order relates or for which a consent should have been obtained:

(c)

the cost of remedying the breach of condition:

(d)

the cost of remedying the breach of a term of a prohibition order or a direction order:

(e)

the loss suffered by a person in relation to a breach of a term of a condition.

(2A)

However, in the case of a contravention of section 51C, the amount of the civil pecuniary penalty must not exceed $20,000.

(3)

A person cannot be ordered to pay a penalty under this section and be required to pay a fine under any of sections 42 to 46 for the same conduct.

(4)

For the purposes of this section, the court must determine whether a person’s conduct falls within subsection (1) on a balance of probabilities.

Section 48 heading: amended, on 16 June 2020, by section 38(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 48 heading: amended, on 22 October 2018, by section 38(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 48(1): amended, on 16 June 2020, by section 38(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 48(1)(d): replaced, on 16 June 2020, by section 38(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 48(1)(e): inserted, on 22 October 2018, by section 38(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 48(2): replaced, on 16 June 2020, by section 38(4) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 48(2A): inserted, on 22 October 2018, by section 38(6) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 48(2A): amended, on 16 June 2020, by section 38(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

48A Defences for person involved in contravention, offence, or failure

(1)

This section applies if—

(a)

a person (A) contravenes this Act, commits an offence under this Act, or fails to comply as referred to in section 48(1)(c) or (d); and

(b)

another person (B) is involved in the contravention, the commission of the offence, or the failure.

(2)

In any proceeding under section 48 against B for involvement in the contravention, the commission of the offence, or the failure, it is a defence if B proves that—

(a)

B’s involvement in the contravention, the commission of the offence, or the failure was due to reasonable reliance on information supplied by another person; or

(b)

B took all reasonable and proper steps to ensure that A complied with this Act, did not commit the offence, or complied with the notice or condition referred to in section 48(1)(c) or (d) (as the case may be).

(3)

In subsection (2)(a), another person does not include a director, an employee, or an agent of B.

Compare: 2013 No 69 s 503

Section 48A: inserted, on 22 October 2018, by section 39 of the Overseas Investment Amendment Act 2018 (2018 No 25).

49 Court may order mortgage to be registered over land

(1)

The court may, on the application of the regulator, order that a mortgage in favour of the Crown or any other person be registered over land to which a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order relates for the purpose of securing—

(a)

the performance of any obligation, or the repayment of any money, under a term or condition of the consent, the exemption, the exemption certificate, the direction order, the interim direction order, the prohibition order, or the disposal order; or

(b)

the payment of a fine or civil pecuniary penalty imposed under this Act; or

(c)

the payment of interest that must be paid under an order made under section 50.

(2)

The court must approve the terms of the mortgage before it is registered.

(3)

The court may make any other order or make any direction that is necessary to give effect to an order under subsection (1).

Section 49(1): amended, on 16 June 2020, by section 39(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 49(1)(a): replaced, on 16 June 2020, by section 39(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 49(1)(b): amended, on 16 June 2020, by section 39(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

50 Court may order interest to be paid

(1)

The court may order that a person who is in breach of this Act or a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order requiring the payment of money or on whom a fine or civil pecuniary penalty has been imposed under this Act must also pay interest on the amount to be paid.

(2)

The court may fix the amount of interest in its discretion.

Section 50(1): amended, on 16 June 2020, by section 40(a) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 50(1): amended, on 16 June 2020, by section 40(b) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 50(1): amended, on 22 October 2018, by section 41 of the Overseas Investment Amendment Act 2018 (2018 No 25).

51 Court may order compliance with condition of consent, exemption, exemption certificate, direction order, or interim direction order

(1)

This section applies to—

(a)

a consent holder:

(b)

a person who is relying on an exemption or an exemption certificate that is subject to a condition:

(c)

a person who is subject to a direction order or an interim direction order.

(2)

On the application of the regulator, the court may—

(a)

restrain a person from acting in breach of a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order:

(b)

order a person in breach of a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order to comply with it.

Section 51 heading: amended, on 16 June 2020, by section 41(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 51: replaced, on 22 October 2018, by section 42 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 51(1)(c): inserted, on 16 June 2020, by section 41(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 51(2)(a): amended, on 16 June 2020, by section 41(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 51(2)(b): amended, on 16 June 2020, by section 41(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

51AAA Court may grant injunction

(1)

The court may, on the application of the regulator or any other person, grant an injunction—

(a)

restraining a person from engaging in conduct that constitutes or would constitute a contravention of this Act or regulations (including any matter referred to in section 48(1)):

(b)

requiring a person to do an act or a thing if—

(i)

that person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do that act or thing; and

(ii)

the refusal or failure was, is, or would be a breach of this Act or regulations.

(2)

The court may at any time rescind or vary an injunction granted under this Part.

Compare: 2013 No 69 s 480

Section 51AAA: inserted, on 16 June 2020, by section 42 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

51AAB When court may grant restraining injunctions

(1)

The court may grant an injunction restraining a person from engaging in conduct of a particular kind if—

(a)

it is satisfied that the person has engaged in conduct of that kind; or

(b)

it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind.

(2)

The court may grant an interim injunction restraining a person from engaging in conduct of a particular kind if in its opinion it is desirable to do so.

(3)

Subsections (1)(a) and (2) apply whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.

(4)

Subsections (1)(b) and (2) apply whether or not the person has previously engaged in conduct of that kind or there is an imminent danger of substantial damage to any other person if that person engages in conduct of that kind.

Compare: 2013 No 69 s 481

Section 51AAB: inserted, on 16 June 2020, by section 42 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

51AAC When court may grant performance injunctions

(1)

A court may grant an injunction requiring a person to do an act or a thing if—

(a)

it is satisfied that the person has refused or failed to do that act or thing; or

(b)

it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that thing.

(2)

The court may grant an interim injunction requiring a person to do an act or a thing if in its opinion it is desirable to do so.

(3)

Subsections (1)(a) and (2) apply whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing.

(4)

Subsections (1)(b) and (2) apply—

(a)

whether or not the person has previously refused or failed to do that act or thing; or

(b)

where there is an imminent danger of substantial damage to any other person if that person refuses or fails to do that act or thing.

Section 51AAC: inserted, on 16 June 2020, by section 42 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

51AAD Undertaking as to damages not required by regulator

(1)

If the regulator applies to the court for the grant of an interim injunction under this subpart, the court must not, as a condition of granting an interim injunction, require the regulator to give an undertaking as to damages.

(2)

In determining the regulator’s application for the grant of an interim injunction, the court must not take into account that the regulator is not required to give an undertaking as to damages.

Compare: 2013 No 69 s 482

Section 51AAD: inserted, on 16 June 2020, by section 42 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

51AAE Publication under this subpart may be deferred or dispensed with

The regulator may defer or dispense with publication of a matter under this subpart (in whole or in part) if the regulator is satisfied on reasonable grounds that good reason for withholding the publication would exist under the Official Information Act 1982.

Section 51AAE: inserted, on 16 June 2020, by section 42 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Statement relating to compliance with consent requirement

Heading: inserted, on 22 October 2018, by section 43 of the Overseas Investment Amendment Act 2018 (2018 No 25).

51A Person who acquires residential land must make and provide statement

(1)

This section applies if—

(a)

a person (A) is acquiring an estate or interest in residential land under a transaction, other than an interest under a mortgage, an interest under any other security arrangement, or an exempted interest; and

(b)

an instrument recording A’s acquisition of the estate or interest will be lodged by or under the direction of a conveyancer.

(2)

A must, in respect of the acquisition, make a statement, to the best of A’s knowledge and belief, relating to whether the transaction requires consent under this Act and, if so, confirming that—

(a)

A has complied or will comply with the requirement; and

(b)

if A is acting on behalf of another person (B), B has complied or will comply with the requirement.

(3)

The statement must be made in a manner that is authorised by the regulator in a notice under section 51B.

(4)

The statement—

(a)

may be in a single document; or

(b)

may be included as part of another document (for example, an agreement for sale and purchase) if this is authorised by the regulator.

(5)

A must, before the instrument is lodged, provide the statement, or a copy of the statement, to the conveyancer who will lodge, or direct the lodgement of, the instrument.

(6)

A statement may be made and provided on A’s behalf by another person (C) in either of the following ways (in which case the statement must be made to the best of C’s knowledge and belief):

(a)

by C acting under an enduring power of attorney granted by A under the Protection of Personal and Property Rights Act 1988; or

(b)

by C acting in a manner authorised by the regulator in a notice under section 51B.

(7)

In this section and sections 51B and 51C,—

conveyancer means a lawyer or conveyancer (where lawyer and conveyancer have the same meanings as in the Lawyers and Conveyancers Act 2006)

lodged means lodged for registration or notation under the Land Transfer Act 2017.

Section 51A: inserted, on 22 October 2018, by section 43 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 51A heading: amended, on 16 June 2020, by section 43(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 51A(1): replaced, on 16 June 2020, by section 43(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

51B Regulator must authorise manner of providing statement

(1)

The regulator must, by notice, authorise the manner in which the statement must be made, including by doing any of the following:

(a)

specifying the required content of the statement, which may include any information that the regulator thinks relevant (for example, information relating to whether A or B is an overseas person, has or will have a consent, or is relying or will rely on an exemption):

(b)

approving or prescribing 1 or more forms for the statement or 1 or more methods for making the statement (or both):

(c)

allowing the statement to be included in another document (for example, in an agreement for sale and purchase):

(d)

authorising the statement to be made and provided on A’s behalf (including the manner for doing so).

(2)

The regulator must—

(a)

notify the making of the notice in the Gazette; and

(b)

publish the notice on an Internet site maintained by, or on behalf of, the regulator.

(3)

The notice is a disallowable instrument but not a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 51B: inserted, on 22 October 2018, by section 43 of the Overseas Investment Amendment Act 2018 (2018 No 25).

51C Conveyancer must obtain and keep statement

(1)

A conveyancer must not lodge, or direct the lodgement of, the instrument referred to in section 51A(1)(c) if the conveyancer—

(a)

has not obtained the statement or a copy of the statement that is required to be provided under section 51A(5) or (6); or

(b)

has reasonable grounds for believing that the statement or copy that is provided is not correct in a material particular.

(2)

The conveyancer must take reasonable steps to ensure that a copy of the statement is kept for a period of at least 7 years after the date on which the instrument is lodged.

(3)

Sections 41F, 45, and 47 do not apply in respect of a contravention of this section (but a conveyancer may be liable to a civil pecuniary penalty under section 48).

Section 51C: inserted, on 22 October 2018, by section 43 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 51C(3): amended, on 16 June 2020, by section 44 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Administrative penalties

52 Administrative penalties for late filing

(1)

The regulator may require a person to pay an administrative penalty if the person files, provides, or produces a document required by or under this Act, regulations, or a term or condition of a consent, an exemption, an exemption certificate, a direction order, an interim direction order, a prohibition order, or a disposal order with the regulator after the time when the document must be filed, provided, or produced.

(2)

The regulator may refuse to accept the document if the penalty has not been paid.

(3)

The penalty is recoverable by the regulator in any court of competent jurisdiction as a debt due to the Crown.

Section 52(1): amended, on 16 June 2020, by section 45 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

53 Administrative penalty for retrospective consent

The regulator may require the applicant for a retrospective consent to pay an administrative penalty before the consent is granted.

Giving, providing, or serving notices or documents

Heading: replaced, on 22 October 2018, by section 45 of the Overseas Investment Amendment Act 2018 (2018 No 25).

54 Address for service

(1)

Every consent holder, holder of an exemption under section 61D, holder of an exemption certificate, and recipient of a direction order, an interim direction order, a prohibition order, or a disposal order must—

(a)

have a postal or street address in New Zealand for service of notices and other documents; and

(b)

notify the regulator of that address; and

(c)

notify the regulator of any change in that address.

(2)

However, subsection (1) does not apply to a recipient of a direction order referred to in section 88(1)(a) (which relates to transactions in respect of which no conditions are imposed).

Section 54: replaced, on 22 October 2018, by section 45 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 54(1): amended, on 16 June 2020, by section 46(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 54(2): inserted, on 16 June 2020, by section 46(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

54A Notices or other documents given, provided, or served by regulator

(1)

Any notice or other document that the regulator may or must give to, provide to, or serve on any person (A) by or under this Act or for the purposes of any proceeding under this Act must be treated as having been given, provided, or served on A if,—

(a)

if A is a person who has complied with section 54, it has been sent by prepaid post to the last address for service for the person that has been notified to the regulator:

(b)

in any other case, it has been served in any of the following ways:

(i)

by leaving the document for A in a prominent position on the relevant land (whether or not A is in possession of that land) and sending a copy of the document to any lawyer or conveyancer who provided conveyancing services to A in respect of the land (where lawyer and conveyancer have the same meanings as in the Lawyers and Conveyancers Act 2006):

(ii)

if A has a known electronic address, by sending it to A at that address in electronic form:

(iii)

if A has a known place of residence or business in New Zealand, by sending it by prepaid post addressed to A at that place of residence or business:

(iv)

if A has an agent in New Zealand and A is absent from New Zealand, by sending it by prepaid post addressed to the agent at the agent’s place of residence or business or by sending it in electronic form to the agent at the agent’s electronic address.

(2)

In subsection (1)(b)(i), relevant land means any land in respect of which A has (or is alleged to have)—

(a)

contravened this Act; or

(b)

committed an offence under this Act; or

(c)

failed to comply with a notice under section 38, 39, 40, or 41; or

(d)

failed to comply with a condition of a consent, an exemption, an exemption certificate, a direction order, or an interim direction order.

(3)

Subsection (1)(b)(iv) applies regardless of whether the agent is acting or has acted on behalf of A in respect of the matter to which the document relates.

(4)

This section applies despite any other rule or law.

Section 54A: inserted, on 22 October 2018, by section 45 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 54A(2)(d): amended, on 16 June 2020, by section 47 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

55 Non-appearance not ground for court to refuse order under Act if person served in accordance with section 54A

The court must not refuse to make an order under sections 47 to 51 on the ground that a person has not appeared or otherwise taken part in the proceeding if the court is satisfied that the proceeding has been served in accordance with section 54A.

Section 55: replaced, on 22 October 2018, by section 45 of the Overseas Investment Amendment Act 2018 (2018 No 25).

55A Proof that documents given, provided, or served

(1)

If a document is given, provided, or served by sending it by prepaid post, then, unless the contrary is shown, the document is given, provided, or served when it would have been delivered in the ordinary course of post, and, in proving that the document was given, provided, or served, it is sufficient to prove that the letter concerned was properly addressed and posted.

(2)

If a document is given, provided, or served by sending it in electronic form, then, unless the contrary is shown, the document is given, provided, or served at the time that the electronic communication first enters an information system that is outside the control of the document’s originator, and, in proving that the document was given, provided, or served, it is sufficient to prove that the document concerned was properly addressed and sent.

(3)

In this section, information system means a system for producing, sending, receiving, storing, displaying, or otherwise processing electronic communications.

Section 55A: inserted, on 22 October 2018, by section 45 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Search and seizure

56 Search warrant

(1)

The regulator may apply for a search warrant to search a place or thing.

(2)

The application must be made in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012 to an issuing officer (within the meaning of section 3 of that Act).

(3)

The issuing officer may issue a search warrant if there are reasonable grounds for believing that—

(a)

an offence under this Act has been, or is being, committed at the place or thing; or

(b)

there is in, on, over, or under the place or thing any thing that is evidence of an offence under this Act.

(4)

The issuing officer may issue the warrant to—

(a)

the regulator; or

(b)

a person authorised by the regulator in writing to execute the warrant; or

(c)

a constable.

(5)

The provisions of Part 4 of the Search and Surveillance Act 2012 (except sections 118 and 119) apply.

Section 56(2): amended, on 1 October 2012, by section 286(2) of the Search and Surveillance Act 2012 (2012 No 24).

Section 56(3): amended, on 1 October 2012, by section 286(3) of the Search and Surveillance Act 2012 (2012 No 24).

Section 56(4): amended, on 1 October 2012, by section 286(4) of the Search and Surveillance Act 2012 (2012 No 24).

Section 56(4)(c): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 56(5): inserted, on 1 October 2012, by section 286(5) of the Search and Surveillance Act 2012 (2012 No 24).

57 Form and content of search warrant
[Repealed]

Section 57: repealed, on 1 October 2012, by section 286(6) of the Search and Surveillance Act 2012 (2012 No 24).

58 Powers conferred by search warrant
[Repealed]

Section 58: repealed, on 1 October 2012, by section 286(6) of the Search and Surveillance Act 2012 (2012 No 24).

59 Requirements when executing search warrant

Section 59: repealed, on 1 October 2012, by section 286(6) of the Search and Surveillance Act 2012 (2012 No 24).

60 Disposal of things seized under search warrant
[Repealed]

Section 60: repealed, on 1 October 2012, by section 286(6) of the Search and Surveillance Act 2012 (2012 No 24).

Subpart 6—Miscellaneous provisions

61 Regulations

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

(aaa)

prescribing classes of dwellings not to be treated as residential dwellings in this Act:

(aab)

prescribing additional classes of facilities to be treated as excluded accommodation facilities in this Act:

(aac)

prescribing classes of profits à prendre not to be treated as regulated profits à prendre in this Act:

(a)

determining how to measure value or apply the value thresholds under section 13:

(b)

prescribing, for the purposes of the criteria in section 16(1)(f), procedures for offering the farm land or the securities to which the overseas investment relates for acquisition on the open market to persons who are not overseas persons:

(ba)

making provision referred to in section 16A(4) (see also paragraphs (c) and (ca) of this subsection):

(c)

setting out what must be done to make an offer to the Crown count for the purposes of section 16A(4)(f) or 17(2)(f), including prescribing—

(i)

a maximum or minimum period for which an offer must be open:

(ii)

the maximum price at which the land may be offered, and a valuation procedure for fixing that maximum price:

(iii)

requirements about the non-price terms and conditions on which the land must be offered, with the purpose of ensuring that it is offered to the Crown on terms and conditions that are equivalent to those offered to the overseas person—

(A)

to the extent that the offer to the Crown is equivalent to the offer made to the overseas person; and

(B)

subject to the person making the offer choosing to make the terms and conditions more favourable to the Crown:

(iv)

power for the relevant Ministers—

(A)

to determine that an offer does not count for the purposes of section 16A(4)(f) or 17(2)(f) on the basis that any requirements set out in regulations under this paragraph have not been met in relation to the offer:

(B)

to waive the requirement that an offer be made for the purposes of section 16A(4)(f) or 17(2)(f):

(v)

other processes that the person making an offer must follow, or other requirements that that person must meet, in relation to the preparation, making, assessment, acceptance, or implementation of the offer, including requirements to meet costs that are, or that would otherwise be, incurred by the Crown:

(ca)

setting out processes that the Crown must follow, or other requirements that the Crown must meet, in relation to the preparation, making, assessment, acceptance, or implementation of an offer made, or to be made, for the purposes of section 16A(4)(f) or 17(2)(f):

(d)

prescribing other factors that the relevant Ministers may apply under section 17(2)(g) of this Act or under section 57H of the Fisheries Act 1996:

(e)

prescribing fees and charges to be paid, or the amounts to be charged, a means by which they may be calculated and ascertained, or a rate at which they may be calculated or ascertained, for the purpose of meeting or assisting in meeting costs of Ministers and the regulator in exercising functions and powers, and performing duties, and providing services, under this Act (but also the previous costs of Ministers and the Commission in relation to those matters under the Overseas Investment Act 1973):

(f)

prescribing maximum bonds to be charged under section 25, a means by which bonds may be calculated or ascertained, or a rate at which bonds may be calculated or ascertained, for the purpose of meeting estimated reasonable costs of Ministers and the regulator in monitoring compliance with a condition or conditions of consent or exemption, and providing for the payment, and repayment if conditions are met, of those bonds:

(g)

prescribing maximum administrative penalties to be charged by the regulator, a means by which administrative penalties may be calculated or ascertained, or a rate at which administrative penalties may be calculated or ascertained, for the purposes of sections 52 and 53:

(h)

exempting or providing for exemptions from, or waivers, refunds, or discounting of, fees, charges, amounts, or administrative penalties:

(i)

implementing obligations that have entered into force for New Zealand before the commencement of section 46 of the Overseas Investment Amendment Act 2018 under any international agreements to which New Zealand is a party and that relate to overseas investments in sensitive land:

(j)

specifying types of overseas persons for the purposes of clauses 4(2)(d) and 7 of Schedule 2 where necessary to implement obligations that have entered into force for New Zealand before the commencement of section 46 of the Overseas Investment Amendment Act 2018 under any international agreements to which New Zealand is a party and that relate to overseas investments in sensitive land:

(ja)

prescribing, for the purposes of clauses 7 and 8 of Schedule 2,—

(i)

the process for considering whether a person remains committed to residing in New Zealand, including relevant factors (which may be non-exhaustive):

(ii)

additional ways in which a trigger event is resolved:

(jb)

setting a maximum percentage of new residential dwellings in a development that an exemption certificate may be applied to, including a nil percentage:

(k)

providing for applications for exemptions:

(ka)

prescribing matters for the purposes of section 61G, including listing exemptions for the purposes of that section, prescribing circumstances in which that section does not apply, specifying classes of conditions to which section 61G(3) applies, and providing for matters under section 61G(5):

(l)

providing for and regulating the giving or service of notices for the purposes of this Act, and the effect of those notices:

(la)

providing for definitions for the purposes of section 82(2):

(lb)

prescribing enactments for the purposes of the standing consent in Part 4 of Schedule 1AA and of rows 10 and 11 of table 2 in Part 1 of Schedule 1 (after Schedule 1 is amended by the Overseas Investment Amendment Act (No 3) 2020):

(lc)

exempting, if necessary or desirable to respond to an epidemic in New Zealand, any transaction, person, interest, right, or assets, or any class of transactions, persons, interests, rights, or assets, from the requirement for consent or from the definition of overseas person or associate or associated land:

(m)

providing for transitional provisions:

(n)

providing for any other matters contemplated by this Act or necessary for its administration or necessary for giving it full effect.

(2)

Regulations under this Act (including regulations for prescribing fees, charges, bonds, or administrative penalties) may make different provisions for different cases on any differential basis.

(3)

Any exemptions made in respect of the matters in subsection (1)(lc) are revoked on the 42nd day after the date on which the Overseas Investment Amendment Act (No 3) 2020 receives the Royal assent.

Section 61(1)(aaa): inserted, on 22 October 2018, by section 46(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(aab): inserted, on 22 October 2018, by section 46(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(aac): inserted, on 22 October 2018, by section 46(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(ba): inserted, on 22 October 2018, by section 46(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(c): replaced, on 22 October 2018, by section 46(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(ca): inserted, on 22 October 2018, by section 46(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(i): replaced, on 22 October 2018, by section 46(4) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(i): amended, on 30 December 2018, by section 68A of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90).

Section 61(1)(j): replaced, on 22 October 2018, by section 46(4) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(ja): inserted, on 22 October 2018, by section 46(4) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(jb): inserted, on 22 October 2018, by section 46(4) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(ka): inserted, on 22 October 2018, by section 46(5) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(1)(la): inserted, on 16 June 2020, by section 48(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 61(1)(lb): inserted, on 16 June 2020, by section 48(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 61(1)(lc): inserted, on 16 June 2020, by section 48(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 61(2): replaced, on 22 October 2018, by section 46(6) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61(3): inserted, on 16 June 2020, by section 48(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

61A Regulations regarding alternative monetary thresholds for overseas investments in significant business assets

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations in order to implement obligations in all or any of the following international agreements in respect of certain overseas investments in New Zealand in significant business assets by certain investors:

(aaa)

the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, done at Santiago, Chile, on 8 March 2018:

(a)

the Trans-Pacific Partnership Agreement done at Auckland on 4 February 2016:

(b)

the Free Trade Agreement between New Zealand and the Republic of Korea done at Seoul on 23 March 2015:

(c)

the Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu on Economic Cooperation done at Wellington on 10 July 2013:

(d)

the Protocol on Investment to the New Zealand–Australia Closer Economic Relations Trade Agreement done at Wellington on 16 February 2011:

(e)

the New Zealand–Hong Kong, China Closer Economic Partnership Agreement done at Hong Kong on 29 March 2010:

(f)

the Free Trade Agreement between the Government of New Zealand and the Government of the People’s Republic of China done at Beijing on 7 April 2008:

(g)

the Trans-Pacific Strategic Economic Partnership Agreement, done at Wellington on 18 July 2005.

(2)

Regulations made under subsection (1) may provide for alternative monetary thresholds under section 13 that apply, on terms and conditions (if any), to 1 or more classes of transactions, persons, interests, rights, and assets.

(3)

The Minister must be satisfied, before making a recommendation under this section, that the regulations do not provide for an alternative monetary threshold that is higher than the amount provided for in the relevant international agreement referred to in subsection (1), but the text of the regulations may otherwise differ from the text of an agreement.

(4)

Regulations made under subsection (1) may incorporate by reference any provisions of an international agreement referred to in that subsection.

(5)

Regulations made under subsection (1) may be made only to implement obligations in an international agreement that has entered into force for New Zealand.

Section 61A: inserted, on 30 December 2018, by section 69 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90).

61B Purpose of exemptions

The purpose of sections 61C and 61D is to—

(a)

provide flexibility where compliance with this Act is impractical, inefficient, unduly costly, or unduly burdensome, taking into account the sensitivity of the sensitive assets and the nature of the overseas investment transaction; or

(b)

allow for exemptions that are minor or technical; or

(c)

allow for exemptions in respect of all or any of the following matters:

(i)

interests in land to be used for diplomatic or consular purposes:

(ii)

persons registered as a charitable entity under the Charities Act 2005:

(iii)

minor increases in ultimate ownership and control by overseas persons if consent has already been granted for those overseas persons to own or control sensitive assets:

(iv)

security arrangements that are entered into in the ordinary course of business:

(v)

relationship property as defined in section 8 of the Property (Relationships) Act 1976:

(vi)

interests in land acquired for the purpose of providing network utility services:

(vii)

interests in residential (but not otherwise sensitive) land acquired in order to comply with a requirement imposed by or under the Resource Management Act 1991 and to support a business that is not principally in the business of using land for residential purposes:

(viii)

persons, transactions, rights, interests, or assets that the Minister considers to be fundamentally New Zealand owned or controlled or to have a strong connection to New Zealand:

(ix)

persons, transactions, rights, interests, or assets that the Minister considers support, or are related to, the issuance or management of residential mortgage-backed securities complying with a standard created or endorsed by the Reserve Bank.

Section 61B: inserted, on 22 October 2018, by section 47 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61B(a): replaced, on 16 June 2020, by section 49(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 61B(c)(viii): inserted, on 16 June 2020, by section 49(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Section 61B(c)(ix): inserted, on 16 June 2020, by section 49(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

61C Regulations may contain class or individual exemptions

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations exempting any transaction, person, interest, right, or assets, or any class of transactions, persons, interests, rights, or assets, from the requirement for consent or from the definition of overseas person or associate or associated land.

(2)

See sections 61E (criteria for all exemptions) and 61F (other provisions applying to all exemptions).

Section 61C: inserted, on 22 October 2018, by section 47 of the Overseas Investment Amendment Act 2018 (2018 No 25).

61D Minister may grant individual exemptions

(1)

The Minister may exempt any transaction, person, interest, right, or assets from the requirement for consent or from the definition of overseas person or associate or associated land.

(2)

See sections 61E (criteria for all exemptions) and 61F (other provisions applying to all exemptions).

(3)

The Minister must publish each exemption granted under subsection (1) on an Internet site maintained by or for the regulator, unless section 61F(6) applies.

Section 61D: inserted, on 22 October 2018, by section 47 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61D(3): amended, on 16 June 2020, by section 50 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

61E Criteria for all exemptions

(1)

The Minister may recommend any regulations under section 61C, or grant an exemption under section 61D, only if the Minister considers—

(a)

that there are circumstances that mean that it is necessary, appropriate, or desirable to provide an exemption for any of the matters referred to in section 61B(a) to (c); and

(b)

that the extent of the exemption is not broader than is reasonably necessary to address those circumstances.

(2)

In so considering, the Minister—

(a)

must have regard to the purpose of this Act; and

(b)

may have regard to all or any of the following:

(i)

the extent to which effective ownership or control is changed by the overseas investment or remains with persons who are not overseas persons:

(ii)

the extent to which a sensitive asset is already held in overseas ownership or control:

(iii)

the extent to which the acquisition is the result of the operation of other legislation or an event outside the control of the overseas person:

(iv)

the extent of time an overseas person is likely to have ownership or control of a right or an interest, for what purpose, and the likely impact on the sensitive asset of that overseas ownership or control:

(v)

any other factors that seem to the Minister to be relevant to the circumstances.

Section 61E: inserted, on 22 October 2018, by section 47 of the Overseas Investment Amendment Act 2018 (2018 No 25).

61F Other provisions applying to all exemptions

(1)

This section applies to regulations under section 61C and exemptions granted under section 61D.

(2)

An exemption may be made subject to any conditions.

(3)

Regulations under section 61C may provide, where a person relies on an exemption in the regulations, for the following:

(a)

for conditions of consents, to the extent set out in the regulations, to continue in effect as conditions of the consents but on the basis set out in the regulations (whether or not the person who relies on the exemption is a consent holder):

(b)

for the person who relies on the exemption to be treated as a consent holder to the extent set out in the regulations:

(c)

for consent holders to cease to be subject to the conditions of their consents to the extent set out in the regulations.

(4)

An exemption may at any time be amended or revoked in the same way as it may be made (for example, section 61E applies with all necessary modifications).

(5)

The reasons of the Minister for recommending the regulations or granting an exemption (including why the exemption is necessary, appropriate, or desirable) must be published together with the regulations or exemption.

(6)

However, the publication of an exemption under section 61D, or of the reasons for granting any exemption, may be deferred or dispensed with (in whole or in part) if the Minister is satisfied on reasonable grounds that good reason for withholding the exemption or the reasons (as the case may be) would exist under the Official Information Act 1982.

Compare: 1993 No 107 ss 45, 45A; 2013 No 69 ss 571(5), 572

Section 61F: inserted, on 22 October 2018, by section 47 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Section 61F(6): amended, on 16 June 2020, by section 51 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

61G Person who relies on exemption to acquire property may be subject to existing consent or exemption conditions

(1)

This section applies if—

(a)

1 or more of the following apply:

(i)

a consent holder (A) is subject to 1 or more conditions that apply in connection with property:

(ii)

a person (A) relies on an exemption in, or an exemption granted under, this Act or the regulations that is subject to 1 or more conditions that apply in connection with property:

(iii)

because of the previous operation of this section, a person (A) is treated as being subject to 1 or more conditions that apply in connection with property; and

(b)

another person (B) acquires the property (in whole or in part) under an overseas investment transaction, but B does not obtain consent because B relies on an exemption listed in the regulations; and

(c)

the regulations specify 1 or more classes of conditions to which subsection (3) applies.

(2)

However, this section does not apply in the circumstances prescribed in the regulations (if any).

(3)

B must be treated as being subject to the conditions referred to in subsection (1)(a) that are of the class specified in the regulations (and those conditions apply as conditions of a consent or an exemption, as the case may be, with all necessary modifications as if B were the person who was originally subject to the conditions).

(4)

If the conditions that apply to B are conditions of a consent, B must be treated as being a consent holder in respect of the property and in respect of the conditions (for example, B may agree to the variation of the conditions under section 27).

(5)

A ceases to be subject to the conditions in the circumstances, and to the extent, provided for in the regulations.

(6)

Subsection (5) does not limit subsection (4).

(7)

This section does not limit section 61F(3).

Section 61G: inserted, on 22 October 2018, by section 47 of the Overseas Investment Amendment Act 2018 (2018 No 25).

62 Foreshore, seabed, riverbed, or lakebed acquired by the Crown under consent process is not subdivision

Nothing in section 11 or Part 10 of the Resource Management Act 1991 applies to—

(a)

any acquisition by the Crown of land as a direct or indirect consequence of an offer made to the Crown to satisfy section 16A(4)(f) or 17(2)(f); or

(b)

any matter incidental to, or required for the purpose of, any acquisition of that kind.

Section 62(a): amended, on 22 October 2018, by section 24 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Subpart 7—Transitional provisions and amendments to other enactments

Dissolution of Commission

63 Commission dissolved

The Commission is dissolved.

64 Assets and liabilities vest in the Crown

All rights, assets, liabilities, and debts that the Commission had immediately before the commencement of section 63 must be treated as the rights, assets, liabilities, and debts of the Crown on that commencement.

65 No compensation for loss of office

The Crown is not liable to make a payment to, or otherwise compensate, any person in respect of that person ceasing to hold any office established by or under the Overseas Investment Act 1973.

66 Transfer to LINZ

A person who was employed by the Reserve Bank in a position with the Commission immediately before the commencement of section 63 and who has given a written notice of transfer of employment to the chief executive of LINZ is entitled on the commencement of section 63 to be transferred to LINZ.

67 Transferring employee must be employed in equivalent employment

(1)

An employee who transfers to LINZ under section 66 must be employed in equivalent employment to his or her employment immediately before the commencement of section 63.

(2)

In subsection (1), equivalent employment means employment by LINZ of the employee—

(a)

in substantially the same position; and

(b)

in the same general locality; and

(c)

on terms and conditions that are no less favourable.

(3)

The requirement that the terms and conditions of the employee’s employment with LINZ are no less favourable continues to apply until those terms and conditions are varied by agreement between the employee and the chief executive of LINZ.

68 Continuity of employment

(1)

Every transferring employee becomes an employee of LINZ on the commencement of section 63.

(2)

However, for the purposes of every enactment, law, determination, contract, and agreement relating to the employment of the employee,—

(a)

the employee’s contract of employment with LINZ must be treated as a continuation of the employee’s contract of employment with the Reserve Bank; and

(b)

the employee’s period of service with the Reserve Bank, and every other period of service of that employee that was recognised by the Reserve Bank as continuous service, must be treated as a period of service with LINZ.

69 No compensation for technical redundancy

A transferring employee is not entitled to receive any payment or any other benefit on the ground that—

(a)

the position held by the person with the Reserve Bank has ceased to exist (as a result of the dissolution of the Commission); or

(b)

the person has ceased (as a result of the transfer to LINZ) to be an employee of the Reserve Bank.

70 Final report

(1)

Before the commencement of section 63, the Commission must prepare and submit to the Minister a final report of its operations for the period beginning on 1 July 2005 and ending with the close of the day before the commencement of section 63.

(2)

The Minister must present a copy of the report to the House of Representatives not more than 6 sitting days after receiving it.

71 References to Commission

Unless the context otherwise requires, every reference to the Commission in any enactment, agreement, deed, instrument, application, notice, or any other document in force immediately before the commencement of section 63, on and after that commencement, must be read as a reference to the regulator.

72 Proceedings of Commission

(1)

Any proceedings to which the Commission is a party before the commencement of section 63 may be continued, completed, and enforced by or against the Crown.

(2)

This section is for the avoidance of doubt.

Amendments to Fisheries Act 1996[Repealed]

Heading: repealed, on 22 October 2018, by section 25 of the Overseas Investment Amendment Act 2018 (2018 No 25).

73 New sections 56 to 58B substituted in Fisheries Act 1996
[Repealed]

Section 73: repealed, on 22 October 2018, by section 25 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Amendment to Te Ture Whenua Maori Act 1993[Repealed]

Heading: repealed, on 22 October 2018, by section 25 of the Overseas Investment Amendment Act 2018 (2018 No 25).

74 Amendment to Te Ture Whenua Maori Act 1993
[Repealed]

Section 74: repealed, on 22 October 2018, by section 25 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Consequential amendments[Repealed]

Heading: repealed, on 22 October 2018, by section 25 of the Overseas Investment Amendment Act 2018 (2018 No 25).

75 Consequential amendments
[Repealed]

Section 75: repealed, on 22 October 2018, by section 25 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Transitional provisions

76 Repeal and revocations

(1)

In this section and in the rest of this subpart,—

1973 Act means the Overseas Investment Act 1973

Regulations means the Overseas Investment Regulations 1995.

(2)

The 1973 Act is repealed and the Regulations and the Overseas Investment Exemption Notice 2001 are revoked.

77 Transitional provision for acts done or begun under previous overseas investment regime

(1)

In this section, the 1973 Act, the Regulations, sections 56 to 58 of the Fisheries Act 1996, and section 152(3) of Te Ture Whenua Maori Act 1993, as they were in force immediately before the commencement of sections 73, 74, and 76, are called the previous regime.

(2)

The previous regime continues to have effect as if it had not been replaced by this Act (subject to section 71) for the purpose of—

(a)

investigating any offence under or breach of the previous regime committed before the commencement of this section (commencement), commencing or completing proceedings for the offence or breach, or imposing a penalty or other remedy for the offence or breach:

(b)

considering and determining any application for consent or exemption under the Regulations that is made before commencement or that relates to a transaction entered into before commencement:

(c)

considering and determining any application for a declaration under section 56(2), or a permission under section 57, of the Fisheries Act 1996 that is made before commencement or that relates to a transaction entered into before commencement:

(d)

considering and determining an application for confirmation of an alienation under section 152(3) of Te Ture Whenua Maori Act 1993:

(e)

completing any proceedings commenced under the previous regime before commencement.

78 Transitional provision for consents, exemptions, and conditions under 1973 Act and Regulations

(1)

This section applies to consents granted under the Regulations, exemptions granted under the 1973 Act or regulation 16 of the Regulations, and conditions of those consents and exemptions, that are in effect immediately before the commencement of section 76 or that are granted after that commencement by virtue of section 77(2).

(2)

Those consents, exemptions, and conditions must be treated as if they were consents and exemptions granted under this Act, or conditions applied under this Act,—

(a)

for the purposes of subpart 4 (monitoring):

(b)

for the purposes of subpart 5 (enforcement), in relation to any act or omission that occurs after the commencement of section 76.

(3)

However, the following provisions, as in force immediately before the commencement of section 76, continue to apply:

(a)

regulation 14(2) of the Regulations, to those consents and conditions of those consents:

(b)

regulation 16(3) of the Regulations, to those exemptions.

79 Transitional provision for permissions, etc, under Fisheries Act 1996

(1)

This section applies to permissions granted under section 28Z(9) of the Fisheries Act 1983 or under section 57(3) of the Fisheries Act 1996, and conditions of those permissions, that are in effect immediately before the commencement of section 73 or that are granted after that commencement by virtue of section 77(2).

(2)

Those permissions and conditions must be treated as if they were consents granted and conditions applied under this Act.

(3)

However, regulation 14(2) of the Regulations, as in force immediately before the commencement of section 76, continues to apply to those permissions and conditions of those permissions.

80 Transitional provision relating to clause 6 of Schedule 1AA (Exemption relating to dwellings in large apartment developments where sales of dwellings have begun before assent date)

A person may apply for an exemption certificate, and the application may be dealt with, before the commencement of clause 6 of Schedule 1AA as if that clause and the relevant fee prescribed in the regulations were in force.

Section 80: inserted, on 5 September 2018, by section 48 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Part 3 National security and public order risks management regime

Part 3: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

81 Purpose of Part

(1)

The purpose of this Part is to manage—

(a)

significant national security and public order risks associated with transactions by overseas persons; and

(b)

while the emergency notification regime is in place, risks associated with transactions by overseas persons that are contrary to New Zealand’s national interest.

(2)

In order to give effect to that purpose, the Minister may—

(a)

review call-in transactions in accordance with subpart 1; and

(b)

take any of the following actions in accordance with subpart 2:

(i)

make a direction order in relation to a call-in transaction (see sections 88 to 90):

(ii)

make a prohibition order in relation to a call-in transaction (see section 92):

(iii)

make a disposal order in relation to an investment given effect to under a call-in transaction or a transaction of national interest (see section 93):

(iv)

make a recommendation that a person be put into statutory management (see section 96).

(3)

The Minister may also make an interim direction order if the Minister is considering whether to take any of those actions, or what kind of action to take, in relation to a call-in transaction (see section 91).

Section 81: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Subpart 1—Call-in transactions during emergency notification regime

Subpart 1: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Call-in transactions, etc

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

82 What are call-in transactions and overseas investments covered by emergency notification regime

(1)

A call-in transaction is a transaction by an overseas person or an associate of an overseas person that—

(a)

is an overseas investment covered by the emergency notification regime; but

(b)

does not require consent (see section 10).

(2)

An overseas investment is an overseas investment covered by the emergency notification regime if it is—

Securities

(a)

the acquisition by an overseas person, or an associate of an overseas person, of rights or interests in securities of a person (A) if, as a result of the acquisition, the overseas person or the associate (either alone or together with its associates) has—

(i)

a more than 25% ownership or control interest in A; or

(ii)

an increase in an existing more than 25% ownership or control interest in A to either a more than 50% or 75% ownership or control interest in A or a 100% ownership or control interest in A; or

(iii)

an interest defined in the regulations:

Property

(b)

the acquisition by an overseas person, or an associate of an overseas person, of property (including goodwill and other intangible assets) in New Zealand used in carrying on business in New Zealand (whether by 1 transaction or a series of related or linked transactions) of any value that effectively amounts to a change in control of the business, as defined in the regulations.

(3)

This section is subject to any regulations made under section 127(1).

Section 82: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

83 Who are relevant acquirers

The Minister may determine which 1 or more of the following persons is the relevant acquirer for a call-in transaction:

(a)

the person making the overseas investment (A), whether A is an overseas person or an associate of an overseas person:

(b)

any associate of A in relation to the overseas investment.

Section 83: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Review of call-in transactions

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

84 Review of call-in transactions

(1)

The Minister must review a call-in transaction that is notified under section 85.

(2)

The Minister must take a risk management action following a review under subsection (1).

(3)

The Minister may review any call-in transaction that should have been notified under section 85.

(4)

The purpose of a review is to determine whether the transaction gives rise, or is likely to give rise, to a risk referred to in section 81.

(5)

However, if a direction order has already been made in relation to a call-in transaction, the Minister cannot review that transaction, or take another risk management action in relation to the transaction, unless the direction order is revoked in accordance with section 90.

Section 84: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Notification of call-in transactions

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

85 Requirement to notify

(1)

Each overseas person or associate making a call-in transaction must notify the regulator before giving effect to the call-in transaction.

(2)

A call-in transaction must not be given effect to unless the Minister makes a direction order in relation to that transaction.

(3)

A person who fails to comply with this section does not commit an offence under section 45.

Section 85: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

86 Measures to ensure emergency notification regime no broader than reasonably necessary

(1)

The Minister must commence an assessment, no later than 45 days after the commencement of this section, to ensure that the classes of transactions that are subject to the emergency notification regime are not broader than are reasonably necessary having regard to the purposes of this Part.

(2)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—

(a)

extending the effect of any exemption made under this Act so that the exemption also applies to any requirements under the emergency notification regime:

(b)

doing anything necessary or desirable to ensure that the classes of transactions that are subject to the emergency notification regime are not broader than are reasonably necessary, having regard to the purposes of this Part.

Section 86: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

87 Requirements for notification of call-in transaction

(1)

The Minister must, by notice, authorise the manner in which a notification under section 85 must be given, including by doing any of the following:

(a)

specifying the required content of the notification, which may include any information that the Minister thinks relevant:

(b)

approving or prescribing 1 or more forms for the notification or 1 or more methods for making the notification (or both):

(c)

authorising the notification to be given on behalf of the overseas person or associate referred to in section 85(1) (including the manner for doing so).

(2)

The regulator must—

(a)

notify the making of the notice in the Gazette; and

(b)

publish the notice on an Internet site maintained by, or on behalf of, the regulator.

(3)

The notice is a disallowable instrument but not a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

(4)

The regulator may, by notice in writing, require 1 or more persons giving a notification under section 85 to provide a statutory declaration verifying that the information contained in the notification is true and correct.

(5)

For the purpose of considering the notification under section 85, the regulator may, by notice in writing, require a relevant acquirer, or any other person with information relevant to the notification, to provide the information specified in the regulator’s notice and in a form specified by the regulator’s notice.

(6)

A notification under section 85 must be accompanied by the relevant fee (if any), unless this has already been paid.

Section 87: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Subpart 2—Risk management actions

Subpart 2: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Direction orders

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

88 Direction orders

(1)

The Minister may give a direction order to a relevant acquirer following a review of a call-in transaction,—

(a)

notifying that no conditions are imposed (and that the relevant acquirer may give effect to the transaction accordingly); or

(b)

if the direction order is subject to conditions, requiring compliance with the conditions of the order if the call-in transaction is or has been given effect to.

(2)

A direction order is subject to any conditions (if any) that the Minister thinks appropriate to manage a risk referred to in section 81.

(3)

The Minister may impose conditions only if the Minister considers that the call-in transaction gives rise, or is likely to give rise, to a risk referred to in section 81.

(4)

When imposing conditions, the Minister must have regard to New Zealand’s international obligations.

Section 88: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

89 Direction orders may be varied by agreement

(1)

A direction order may be varied by the Minister with the agreement of the relevant acquirer.

(2)

Any conditions of a direction order may be varied or added to by the Minister with the agreement of the relevant acquirer.

(3)

A condition of a direction order may be revoked by the Minister.

Section 89: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

90 Revocation of direction order

The Minister may revoke a direction order if the Minister is satisfied that—

(a)

1 or more of the following events or matters have occurred in connection with the direction order or the call-in transaction that the order relates to:

(i)

a notice under section 85 or any information provided under section 87(2) contained a statement that was false or misleading in any material particular or any material omission:

(ii)

a notice under section 85 or any information provided under section 87(2) provided the Minister with a document that was false or misleading in any material particular:

(iii)

a person has breached a condition of a direction order:

(iv)

a person has contravened an enforceable undertaking (see sections 46A to 46F); and

(b)

the event or matter gives rise, or is likely to give rise, to a risk referred to in section 81.

Section 90: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

91 Interim direction orders

(1)

The Minister may give an interim order of the kind referred to in section 88 to a relevant acquirer if the Minister is considering whether to take a risk management action, or what kind of risk management action to take, in relation to a call-in transaction.

(2)

Sections 88(2) and (4) and 89 apply to an interim direction order as if it were a direction order.

(3)

The Minister may impose conditions only if the Minister considers that the call-in transaction could give rise to a risk referred to in section 81.

(4)

An interim direction order is in force until the earlier of—

(a)

the date specified in regulations; and

(b)

the date on which the Minister takes a risk management action in relation to the relevant call-in transaction.

(5)

The Minister may revoke an interim direction order at any time.

Section 91: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Prohibition orders

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

92 Prohibition orders

(1)

The Minister may give a prohibition order to a relevant acquirer following a review of a call-in transaction, prohibiting the call-in transaction from being given effect to.

(2)

A prohibition order may—

(a)

specify any reasonable steps that must be taken in order to comply with the prohibition order:

(b)

require the person to report to the regulator within the time specified in the order stating how and when the order has been or will be implemented.

(3)

The Minister may give a prohibition order only if the Minister is satisfied on reasonable grounds that—

(a)

the call-in transaction gives rise, or is likely to give rise, to a risk referred to in section 81; and

(b)

the risk cannot be adequately managed by giving the relevant acquirer a direction order.

(4)

When acting under this section, the Minister must have regard to New Zealand’s international obligations.

(5)

A person who is given a prohibition order must comply with it.

Section 92: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Disposal orders

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

93 Disposal orders

(1)

The Minister may give a disposal order to an overseas person, or an associate of an overseas person, who acquired sensitive assets under a transaction of national interest or a call-in transaction.

(2)

A disposal order may—

(a)

require disposal of the whole or any part of the sensitive assets owned by the person or their associate:

(b)

specify the time within which or manner in which the disposal must be made:

(c)

specify any reasonable steps that must be taken in order to comply with the disposal order:

(d)

require the person to report to the regulator within the time specified in the order stating how and when the order has been or will be implemented.

(3)

The Minister may give a disposal order to a person only if the Minister is satisfied on reasonable grounds that—

(a)

the transaction gives rise, or is likely to give rise, or has given rise to a risk referred to in section 81; and

(b)

the risk cannot be adequately managed by taking an enforcement action under subpart 5 of Part 2 or (in the case of sensitive assets acquired under a call-in transaction) giving a direction order to the relevant acquirer.

(4)

See also section 112, which applies when the Minister is giving a disposal order in connection with a transaction of national interest.

(5)

The Minister must have regard to New Zealand’s international obligations when acting under this section.

(6)

A person who is given a disposal order must comply with it within the time, and in the manner, specified in the order.

Section 93: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Statutory management

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

94 Purpose of statutory management

The purpose of statutory management under this subpart is to manage the risks to national security or public order associated with actions by an overseas person, or an associate of an overseas person, who has an interest in sensitive assets, including (without limitation) removing the overseas person’s, or their associate’s, access to or control over the sensitive assets.

Section 94: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

95 Statutory management of person who owns sensitive assets and associates

(1)

The Governor-General may, by Order in Council, on the recommendation of the Minister,—

(a)

declare that a person who owns sensitive assets is subject to statutory management; and

(b)

declare that an associate of a person who owns sensitive assets is subject to statutory management; and

(c)

vest the assets identified in accordance with section 103 in the statutory manager for the purposes of disposing of those assets under that section; and

(d)

appoint 1 or more persons as statutory manager or statutory managers of the person for a specified period.

(2)

If an order is made under subsection (1),—

(a)

every subsidiary of a person declared to be subject to statutory management, except any subsidiary declared to be a subsidiary to which the order does not apply, is subject to statutory management; and

(b)

the appointment of a statutory manager for the specified period in respect of the person under statutory management also applies to those subsidiaries.

(3)

If the order appoints 2 or more persons as statutory managers,—

(a)

the order must state whether the powers of a statutory manager are to be exercised by those persons acting jointly or may be exercised individually; and

(b)

references in this Act to a statutory manager include references to the statutory managers.

(4)

In this section, a person includes a body of persons whether incorporated or not.

Section 95: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

96 Recommendation of Minister

(1)

The Minister may make a recommendation under section 95 only if—

(a)

an overseas person, or an associate of the overseas person, acquired sensitive assets under a transaction of national interest or a call-in transaction; and

(b)

the Minister is satisfied on reasonable grounds that,—

(i)

in relation to the sensitive assets, the overseas person or their associate has acted, is acting, or is likely to act in a manner that gives or is likely to give rise to a significant risk to national security or public order; and

(ii)

the risk cannot be adequately managed by making a direction order (in the case of assets acquired under a call-in transaction), a disposal order, or taking an enforcement action under subpart 5 of Part 2.

(2)

The Minister must have regard to New Zealand’s international obligations when acting under this section.

(3)

See also section 112, which applies when the Minister is making a recommendation in connection with a transaction of national interest.

Section 96: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

97 Statutory management of New Zealand business only

Section 95 applies only to the person’s property, rights, assets, and liabilities relating to its New Zealand business or, if the person has business undertakings unrelated to the sensitive assets, that part of its New Zealand business that relates to the sensitive assets.

Section 97: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

98 Date and time of appointment

(1)

Every order made under section 95 must specify the date on which, and the time at which, it comes into force.

(2)

The date and time specified must not be earlier than the date on which, and the time at which, the order is made.

(3)

If a question arises as to whether, on the date on which a statutory manager was appointed, an act was done or a transaction was entered into or effected before or after the appointment, the act or transaction must, in the absence of proof to the contrary, be treated as having been done, entered into, or effected, as the case may be, after the appointment of the statutory manager.

Section 98: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

99 Considerations affecting exercise of powers by statutory manager

(1)

In exercising the powers conferred on them under this subpart, a statutory manager must have regard to—

(a)

the purpose of statutory management (see section 94); and

(b)

to the extent not inconsistent with paragraph (a), the desirability of preserving the interests of members and creditors of the person under statutory management and the overseas person or, where appropriate, the need to protect the beneficiaries under any trust administered by the person under statutory management or the overseas person or the public interest; and

(c)

to the extent not inconsistent with paragraphs (a) and (b), the need to preserve the business or undertaking of the person under statutory management and the overseas person.

(2)

A statutory manager must, in relation to the statutory management,—

(a)

consult the regulator as and when required by the regulator; and

(b)

have regard to any advice given to the statutory manager by the regulator; and

(c)

comply with any directions given under section 100; and

(d)

provide any reports required under section 100; and

(e)

notify the regulator before taking an action under—

(i)

section 50(1) or (2) of the Corporations (Investigation and Management) Act 1989 (power of statutory manager to sell business undertaking of corporation) (as applied by section 105(i)):

(ii)

section 52(1) of the Corporations (Investigation and Management) Act 1989 (power of statutory manager to put corporation into liquidation) (as applied by section 105(j)):

(iii)

section 103 (power to sell vested property):

(iv)

section 104 (power to terminate contracts).

Section 99: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

100 Role of regulator in statutory management

(1)

The regulator may, in relation to the conduct of the statutory management,—

(a)

give advice to the statutory manager; and

(b)

give written directions to the statutory manager; and

(c)

require a statutory manager to give to the regulator, or to other persons specified by the regulator, reports about the conduct of the statutory management and the state of the affairs or business of the person under statutory management.

(2)

A report required under subsection (1)(c) must be given in the way, and within the period, required by the regulator.

(3)

When acting under this section, the regulator must have regard to—

(a)

the purpose of statutory management (see section 94); and

(b)

New Zealand’s international obligations.

Section 100: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

101 Statutory manager may form body corporate to acquire business of branch of persons not incorporated in New Zealand

(1)

If a person declared to be subject to statutory management is a body corporate incorporated outside New Zealand or an unincorporated body that has its head office or principal place of business outside New Zealand, the statutory manager may—

(a)

form and register a body corporate under the Companies Act 1993 or any other Act:

(b)

subscribe for or acquire, as trustee for the person, all or any of the shares of the body corporate:

(c)

allot or issue all or any of the shares in the body corporate as fully or partly paid, as the case may be, up to the value of any property, rights, and assets vested in the body corporate under subsection (2) (after deducting the value of any liabilities so vested).

(2)

The Governor-General may, by Order in Council, on the recommendation of the Minister, declare that the whole or any part of any property, rights, assets, and liabilities of the person relating to its New Zealand business will vest in the body corporate referred to in subsection (1)(a) on a date specified in the order (and the property, rights, assets, and liabilities vest in the body corporate on the date specified).

(3)

Nothing in subsection (2) reduces, extinguishes, or affects any obligation or liability of a person.

(4)

If a body corporate is formed under subsection (1)(a),—

(a)

the body corporate is subject to statutory management under this subpart as if it had been declared to be so by an order under section 95; and

(b)

the body corporate has the same statutory manager as the person under statutory management; and

(c)

the provisions in this Act relating to statutory management apply (with any necessary modifications) as if the body corporate were a person under statutory management.

Section 101: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

102 Body corporate formed and registered also subject to statutory management

If a body corporate is formed and registered under section 50(2)(a) of the Corporations (Investigation and Management) Act 1989, as applied by section 105(i),—

(a)

the body corporate is subject to statutory management under this subpart as if it had been declared to be so by an order under section 95; and

(b)

the body corporate has the same statutory manager as the person under statutory management; and

(c)

the provisions in this Act relating to statutory management apply (with any necessary modifications) as if the body corporate were a person under statutory management.

Section 102: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

103 Statutory manager may sell vested assets

(1)

This section applies to sensitive assets owned by any overseas person or their associate if—

(a)

the overseas person or their associate is acting in the manner described in section 96(1)(b); but

(b)

the order under section 95 will not make that overseas person or associate subject to statutory management.

(2)

The order may identify the whole or any part of the sensitive assets as assets to be vested in the statutory manager.

(3)

The order may identify the assets either individually or as a group or class.

(4)

The assets identified in the order are vested in the statutory manager on the date on which and time at which the order comes into force (see section 98).

(5)

The statutory manager may sell or otherwise dispose of the whole or any part of the vested assets to any person, on any terms and conditions, that the statutory manager considers appropriate.

(6)

The provisions of sections 51 and 72 of the Corporations (Investigation and Management) Act 1989 apply, with any necessary modifications, to a sale of vested assets under this section as if the sale were a sale under section 50(1) of that Act.

Section 103: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

104 Statutory manager may terminate contracts or arrangements posing significant risk to national security or public order

(1)

If the statutory manager considers that a contract or an arrangement entered into by the person under statutory management gives rise, or is likely to give rise, to a significant risk to national security or public order, the statutory manager may cancel that contract or arrangement.

(2)

If a contract or an arrangement is cancelled under this section,—

(a)

the person under statutory management is discharged from the further performance of the contract or arrangement and from all liabilities for subsequent non-performance of the contract or arrangement; and

(b)

the other party to the contract or arrangement may apply to the court for compensation in respect of the contract or arrangement.

(3)

An application under subsection (2)(b) must be made within 3 months of the person receiving notice of the cancellation.

(4)

The court may award any compensation that it considers just and reasonable, having regard to—

(a)

the value of the consideration provided by the person; and

(b)

all amounts and benefits that the person has received under the contract or arrangement; and

(c)

the conduct of the parties.

Section 104: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

105 Application of Corporations (Investigation and Management) Act 1989

The following provisions of the Corporations (Investigation and Management) Act 1989 apply for the purposes of a statutory management under this Act, with all necessary modifications as if a person declared to be subject to statutory management under this Act were a corporation declared to be subject to statutory management under that Act:

(a)

section 42 (moratorium):

(b)

section 43 (prohibition against removal of assets from New Zealand), except that a person who commits an offence under section 43(2) is liable on conviction,—

(i)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:

(ii)

in any other case, to a fine not exceeding $300,000:

(c)

section 44 (statutory manager may suspend payment of money owing):

(d)

section 45 (management of corporation to vest in statutory manager):

(e)

section 46 (powers of statutory manager):

(f)

section 47 (statutory manager may carry on business of corporation):

(g)

section 48 (statutory manager may pay creditors and compromise claims):

(h)

section 49 (termination of contract of agency or service):

(i)

sections 50, 51, 53, and 72 (statutory manager may sell business undertaking of corporation), but subject to the modifications in section 110:

(j)

section 52 (liquidation of corporations):

(k)

section 54 (power to trace property improperly disposed of):

(l)

section 55 (application of certain provisions of Companies Act 1993):

(m)

section 58 (statutory manager may apply to court for directions):

(n)

section 59 (court may confer additional powers on statutory manager):

(o)

section 61 (prior winding up, liquidation, or receivership to cease):

(p)

section 64 (corporation not entitled to be consulted about exercise of powers):

(q)

section 66 (advances to statutory managers and members of advisory committees):

(r)

section 67 (duty to deliver books and property to statutory manager):

(s)

section 68 (offence to destroy, alter, or conceal records), except that a person who commits an offence under section 68(1) is liable on conviction,—

(i)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $300,000:

(ii)

in any other case, to a fine not exceeding $300,000:

(t)

section 69 (duty to report offences), except that—

(i)

the reference to a person being guilty of an offence includes a person being liable to a civil pecuniary penalty under this Act:

(ii)

in relation to an offence, or to a liability to a civil pecuniary penalty, under this Act, the duty to report the matter to the Solicitor-General includes a duty also to report the matter to the regulator:

(u)

sections 71 and 71A (application of other Acts).

Section 105: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

106 Termination of statutory management

(1)

The Governor-General may, by Order in Council, on the recommendation of the Minister, declare that a person under statutory management is to cease to be subject to statutory management.

(2)

The order must specify the date on which, and the time at which, it comes into force.

(3)

A person under statutory management ceases to be subject to statutory management if the person is put into liquidation on the application of the statutory manager.

Section 106: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

107 Effect of termination of statutory management

(1)

If an order is made under section 106, or a person under statutory management is put into liquidation as referred to in section 106(3), the following happens at the specified time:

(a)

the person under statutory management ceases to be subject to statutory management:

(b)

the appointment of the statutory manager terminates.

(2)

In subsection (1), specified time means, as the case requires,—

(a)

the date and time specified in the order; or

(b)

the date and time of the liquidator’s appointment.

Section 107: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

108 Powers to obtain documents and information

A statutory manager has, and may exercise, all of the powers conferred on a liquidator of a company by sections 261 to 267 of the Companies Act 1993 in the same manner as if the statutory manager were the liquidator of a company in liquidation under that Act (and, for that purpose, section 373(3) of that Act applies with all necessary modifications).

Section 108: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

109 Protection from liability and indemnity

(1)

No statutory manager is liable for an act done or omitted to be done in the performance or exercise in good faith of the statutory manager’s functions, duties, or powers under this Act.

(2)

The Crown indemnifies the statutory manager for any liability that arises from the exercise or purported exercise of, or omission to exercise, any power conferred by this Act unless it is shown that the exercise or purported exercise of, or omission to exercise, the power was in bad faith.

(3)

Any money required for the purposes of this section must be paid out of a Crown Bank Account without further authority than this section.

(4)

The indemnity conferred by subsection (2) extends to legal costs incurred in defending a proceeding.

Section 109: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

110 Expenses of statutory management

(1)

All costs, charges, and expenses properly incurred by a statutory manager in the exercise of the manager’s functions or powers under this subpart (including any remuneration approved by the Minister) are payable by the Crown.

(2)

The Crown is entitled to recover the amounts paid under subsection (1) from either of the following:

(a)

the proceeds of sale or other disposition of any vested assets:

(b)

the proceeds of sale or other disposition of the sensitive assets of the overseas person or their associate’s (whether sold or disposed of as part of the sale of the business undertaking of the person under statutory management or otherwise).

(3)

Section 51 of the Corporations (Investigation and Management) Act 1989 (as applied by section 105(i)) must be read as if a reference to the costs of the statutory manager in selling or disposing of the relevant property were a reference to the Crown’s rights to be repaid under subsection (2).

Section 110: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

111 Modifications where person under statutory management is regulated by Reserve Bank

(1)

This section applies if a person who will be made subject to statutory management by an order under section 95 is any of the following:

(a)

a registered bank (within the meaning of section 2(1) of the Reserve Bank of New Zealand Act 1989):

(b)

a covered bond SPV (within the meaning of section 139B of the Reserve Bank of New Zealand Act 1989):

(c)

a licensed insurer (within the meaning of section 6(1) of the Insurance (Prudential Supervision) Act 2010):

(d)

a non-bank deposit taker (within the meaning of NBDT in section 5 of the Non-bank Deposit Takers Act 2013):

(e)

an operator of a designated settlement system (within the meaning of section 156N of the Reserve Bank of New Zealand Act 1989).

(2)

The Minister must consult the Reserve Bank before making a recommendation under section 96.

(3)

Section 99(1) does not apply and instead the statutory manager must have regard to—

(a)

the purpose of statutory management (see section 94):

(b)

the need to maintain public confidence in the operation and soundness of the financial system:

(c)

the need to avoid significant damage to the financial system:

(d)

to the extent not inconsistent with paragraphs (a), (b), and (c), the desirability of preserving the interests of members and creditors of the person under statutory management and the overseas person or, where appropriate, the need to protect the beneficiaries under any trust administered by the person under statutory management or the overseas person or the public interest:

(e)

to the extent not inconsistent with paragraphs (a), (b), (c), and (d), the need to preserve the business or undertaking of the person under statutory management and the overseas person.

(4)

The statutory manager must have regard to any advice given to the statutory manager by the Reserve Bank.

(5)

A notice under section 99(2)(e) must also be given to the Reserve Bank.

(6)

Section 100 is amended as it relates to directions so that—

(a)

a direction under section 100(1)(b) must be given jointly by the Reserve Bank and the regulator; and

(b)

section 100(3) applies to the regulator and the Reserve Bank; and

(c)

when making a joint direction, the Reserve Bank and the regulator must have regard to the matters set out in subsection (3)(b) and (c).

(7)

A requirement for a report under section 100(1)(c) may be made by the regulator or the Reserve Bank.

Section 111: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Risk management actions and transactions of national interest

Heading: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

112 When risk management actions may be taken in connection with consented transactions of national interest

The Minister may only make a disposal order or a recommendation that a person be put into statutory management in connection with a transaction of national interest for which consent has been granted if the Minister is satisfied that—

(a)

1 or more of the following events or matters have occurred in connection with the relevant consent or the transaction of national interest that the consent relates to:

(i)

an application under section 23 or any information provided under section 23(3) contained a statement that was false or misleading in any material particular or any material omission:

(ii)

an application under section 23 or any information provided under section 23(3) provided the Minister with a document that was false or misleading in any material particular:

(iii)

a person has breached a condition of a consent:

(iv)

a person has contravened an enforceable undertaking (see sections 46A to 46G); and

(b)

that the event or matter gives rise, or is likely to give rise,—

(i)

in the case of a disposal order, to a risk referred to in section 81:

(ii)

in the case of a recommendation that a person be put into statutory management, to a significant risk to national security or public order.

Section 112: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Subpart 3—Protection of classified information

Subpart 3: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

113 Application of subpart

This subpart applies to any civil proceedings (including public law and judicial review proceedings) in a court relating to the administration or enforcement of this Act.

Section 113: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

114 Classified security information and other terms defined

(1)

In this subpart, classified security information means information—

(a)

that is relevant to any proceedings in a court that relate to the administration or enforcement of this Act (or to any intended proceedings); and

(b)

that is held by an agency listed in section 126(2); and

(c)

that the head of the agency, in the case of information held by an intelligence or security agency, or the Attorney-General, in the case of information held by any other agency, certifies in writing cannot be disclosed except to the extent provided in this subpart because, in the opinion of the head of the agency or the Attorney-General (as applicable),—

(i)

the information is information of a kind specified in subsection (2); and

(ii)

disclosure of the information would be disclosure of a kind specified in subsection (3).

(2)

Information falls within subsection (1)(c)(i) if it—

(a)

might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the agency; or

(b)

is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in relation to any of the functions of the agency; or

(c)

has been provided to the agency by the Government of another country or by an agency of the Government of another country or by an international organisation, and is information that cannot be disclosed by the agency because the Government or agency or organisation by which the information has been provided will not consent to the disclosure.

(3)

Disclosure of information falls within subsection (1)(c)(ii) if the disclosure would be likely—

(a)

to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(b)

to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the Government of another country or any agency of such a Government, or by any international organisation; or

(c)

to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

(d)

to endanger the safety of any person.

(4)

In this subpart,—

intended party has the meaning set out in section 117(1)(a)(i)

intended proceedings means the proceedings that an intended party intends to commence as notified under section 117(1)(a)(ii)

non-Crown party, in relation to proceedings, means a person (other than the Crown) that is a party to the proceedings

representative includes a barrister or solicitor engaged to act on behalf of a party

special advocate means a person appointed under section 118(2).

Compare: 2013 No 91 s 102

Section 114: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

115 Obligation to provide court with access to classified security information

(1)

The Crown must, after proceedings are commenced, provide the court with access to the classified security information that is relevant to those proceedings.

(2)

If a special advocate is appointed before proceedings are commenced, the Crown must provide the court with access to the classified security information that is relevant to the intended proceedings.

(3)

The court must keep confidential and must not disclose any information provided as classified security information, even if it considers that the information does not meet the criteria set out in section 114(2) and (3), unless the head of the agency (in the case of information held by an intelligence or security agency) or the Attorney-General (in the case of information held by any other agency) consents to its release.

(4)

Subsection (3) applies both during and after completion of the proceedings.

Compare: 2013 No 91 s 103

Section 115: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

116 Court orders

(1)

The court may, in order to comply with section 115(3), make 1 or more of the following orders:

(a)

an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in the proceedings:

(b)

an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of any witness or witnesses:

(c)

an order forbidding the publication of classified security information or information about classified security information:

(d)

an order excluding any person from the whole or any part of the court’s proceedings, including—

(i)

the non-Crown party or the non-Crown party’s representative; or

(ii)

staff of the court.

(2)

An order made under subsection (1)—

(a)

may be made for a limited period or permanently; and

(b)

if it is made for a limited period, may be renewed for a further period or periods by the court; and

(c)

if it is made permanently, may be reviewed by the court at any time.

Compare: 2013 No 91 s 104

Section 116: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

117 Appointment of special advocate

(1)

This section applies if—

(a)

it appears to a court that—

(i)

a person (the intended party) is or may be entitled to commence proceedings to which this subpart will or may apply but it is necessary for a special advocate to be appointed before the proceedings can be commenced; and

(ii)

the intended party has notified the Crown that the party intends to commence those proceedings and that the party will apply for the appointment of a special advocate; or

(b)

proceedings have been commenced and information presented, or proposed to be presented, in those proceedings includes classified security information; or

(c)

proceedings have been commenced but the non-Crown party’s claim cannot be fully particularised without the non-Crown party being able to consider classified security information.

(2)

The court may, on the application of an intended party or a non-Crown party, appoint a barrister or solicitor as a special advocate to represent the intended party’s or the non-Crown party’s interests on the terms that the court may direct if the court is satisfied that it is necessary to do so in order to ensure either or both of the following:

(a)

that the intended party can properly prepare and commence proceedings:

(b)

that a fair hearing will occur.

(3)

The court must, before appointing a person as a special advocate, be satisfied that the person—

(a)

holds an appropriate security clearance that allows the person to see information that is or may be classified security information; and

(b)

is suitably qualified and experienced to fulfil the role of a special advocate.

(4)

A special advocate appointed to represent an intended party may, after the proceedings are commenced, continue to act as the special advocate on behalf of that person (as a non-Crown party), subject to the terms that the court may direct.

(5)

The court may make directions as to the terms of the appointment, and on the matters referred to in sections 120 and 121(3), before or after the proceedings are commenced.

(6)

The appointment of a special advocate does not create an obligation requiring the intended party to commence proceedings.

(7)

The agency to which the proceedings or intended proceedings relate must meet the actual and reasonable costs of a special advocate on a basis—

(a)

agreed between the special advocate and the head of the agency (in the case of an intelligence or security agency) or the Attorney-General (in the case of any other agency); or

(b)

determined by the court (in default of agreement).

Compare: 2013 No 91 s 105

Section 117: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

118 Nomination of person for appointment

(1)

Each of the following may nominate a barrister or solicitor to be appointed as the special advocate:

(a)

the Crown:

(b)

the intended party or the non-Crown party (as the case may be).

(2)

The court may appoint a person nominated under subsection (1) or another person.

Compare: 2013 No 91 s 106

Section 118: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

119 Role of special advocates

(1)

The role of a special advocate is to represent an intended party or a non-Crown party.

(2)

In particular, a special advocate may—

(a)

prepare and commence proceedings on behalf of the person:

(b)

examine and cross-examine witnesses:

(c)

make oral and written submissions to the court:

(d)

assist in the settlement of the proceedings.

(3)

At all times, a special advocate must act in accordance with his or her duties as an officer of the High Court.

(4)

A special advocate must keep confidential and must not disclose classified security information, except as expressly provided or authorised under this Act.

Compare: 2013 No 91 s 107

Section 119: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

120 Court may provide access to classified security information to special advocate

(1)

A special advocate may, before or after the commencement of proceedings, apply to the court for access to the classified security information.

(2)

The court may provide access to the classified security information to the special advocate on the terms that the court may direct.

Compare: 2013 No 91 s 108

Section 120: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

121 Communication between special advocate and other persons

(1)

A special advocate may communicate with the relevant party or the relevant party’s representative on an unlimited basis until the special advocate has been provided with access to the classified security information.

(2)

After the special advocate has been given access to the classified security information, he or she must not communicate with any person about any matter connected with the classified security information except in accordance with this section.

(3)

A special advocate who, after having been given access to the classified security information, wishes to communicate with the relevant party, the relevant party’s representative, or any other person not referred to in subsection (4) may do so on the terms that the court may direct.

(4)

A special advocate may, without the approval of the court, communicate about any matter connected with the classified security information with—

(a)

the court:

(b)

the Crown’s security-cleared representative:

(c)

the Attorney-General:

(d)

the head of the agency to which the proceedings relate, or the agency’s security-cleared representative.

(5)

In this section, relevant party means the intended party or non-Crown party.

Compare: 2013 No 91 s 109

Section 121: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

122 Protection of special advocates from liability

(1)

To the extent that a special advocate is acting in accordance with the requirements of this Act, the special advocate is not guilty of—

(a)

misconduct within the meaning of section 7 or 9 of the Lawyers and Conveyancers Act 2006; or

(b)

unsatisfactory conduct within the meaning of section 12 of that Act.

(2)

This subpart applies despite the requirements of any practice rules made and approved under the Lawyers and Conveyancers Act 2006.

(3)

No person is personally liable for any act done or omitted to be done in good faith, in his or her capacity as a special advocate, in accordance with the requirements or provisions of this Act.

Compare: 2013 No 91 s 110

Section 122: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

123 Other matters relating to procedure in proceedings involving classified security information

(1)

The court must determine the proceedings on the basis of information available to it (whether or not that information has been disclosed to or responded to by all parties to the proceedings).

(2)

If information presented, or proposed to be presented, in the proceedings by the Crown includes classified security information,—

(a)

except where proceedings are before the Court of Appeal or the Supreme Court, the proceedings must be heard and determined by the Chief High Court Judge, or by 1 or more Judges nominated by the Chief High Court Judge, or both; and

(b)

the court must, on a request by the Attorney-General and if satisfied that it is necessary to do so for the protection of (either all or part of) the classified security information, receive or hear (the relevant part or all of) the classified security information in the absence of all or any of—

(i)

the non-Crown party; and

(ii)

the barristers or solicitors (if any) representing the non-Crown party; and

(iii)

journalists; and

(iv)

members of the public.

(3)

Without limiting subsection (2),—

(a)

the court may approve a summary of the classified security information that is presented by the Attorney-General except to the extent that a summary of any particular part of the information would itself involve disclosure that would be likely to prejudice the interests referred to in section 114(3); and

(b)

on being approved by the court, a copy of the summary must be given to the non-Crown party.

(4)

Subsections (1) to (3) apply despite any enactment or rule of law to the contrary.

Compare: 2013 No 91 s 111

Section 123: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

124 Nothing in this subpart limits other rules of law that authorise or require withholding of document, etc

Nothing in this subpart limits section 27 of the Crown Proceedings Act 1950 or any rule of law that authorises or requires the withholding of a document or the refusal to answer a question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

Compare: 2013 No 91 s 112

Section 124: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

125 Ancillary general practices and procedures to protect classified security information

(1)

Any general practices and procedures that may be necessary to implement the procedures specified in this subpart and to ensure that classified security information is protected in all proceedings to which this subpart applies must be agreed between the Chief Justice and the Attorney-General as soon as practicable after the commencement of this section, and revised from time to time.

(2)

General practices and procedures may be agreed under subsection (1) on the following matters:

(a)

measures relating to the physical protection of the information during all proceedings to which this subpart relates:

(b)

the manner in which the information may be provided to the court:

(c)

measures to preserve the integrity of the information until any appeals are withdrawn or finally determined.

(3)

Subsection (2) does not limit subsection (1).

Compare: 2013 No 91 s 113

Section 125: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Subpart 4—Miscellaneous provisions

Subpart 4: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

126 Power to use and disclose information relevant to managing certain risks

(1)

Any agency identified in subsection (2) (a disclosing agency) may disclose to any other agency identified in subsection (2) (a receiving agency) any information held by the disclosing agency if the disclosing agency has reasonable grounds to believe that the disclosure of that information is necessary for the purpose of managing national security and public order risks associated with transactions by overseas persons.

(2)

The agencies are—

(a)

an intelligence or security agency:

(b)

the Department of Internal Affairs:

(c)

the Department of the Prime Minister and Cabinet:

(d)

the Inland Revenue Department:

(e)

Land Information New Zealand:

(f)

the Ministry of Business, Innovation, and Employment:

(g)

the Ministry of Defence:

(h)

the Ministry of Foreign Affairs and Trade:

(i)

the New Zealand Customs Service:

(j)

the New Zealand Police:

(k)

New Zealand Trade and Enterprise:

(l)

the Reserve Bank:

(m)

the Treasury:

(n)

the regulator:

(o)

any other agency set out in regulations.

(3)

A receiving agency may use information that is disclosed in reliance on this section only for the purpose of managing national security and public order risks, and only in accordance with this section and the regulations (if any), despite anything to the contrary in the Privacy Act 1993.

(4)

Before disclosing information in reliance on this section, a disclosing agency must impose conditions that the disclosing agency considers are needed to ensure that subsection (3) is complied with, including conditions relating to—

(a)

the storage and use of, or access to, anything provided:

(b)

the copying, returning, or disposing of copies of any documents provided.

(5)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

(a)

prescribing agencies for the purposes of subsection (2)(o):

(b)

governing the disclosure and use of information under this section, including—

(i)

the types of information that may be disclosed:

(ii)

the conditions that must be imposed when the information is disclosed.

(6)

The Minister must consult with the Privacy Commissioner before recommending that regulations be made under this section.

(7)

The Minister must, before making a recommendation that an agency be prescribed under subsection (2)(o), be satisfied that it is necessary that information is able to be disclosed to that agency for the purpose of managing national security and public order risks.

(8)

This section applies despite anything to the contrary in any contract, deed, or document.

Section 126: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

127 Regulations regarding transactions of national interest and overseas investments in SIB assets

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

(a)

prescribing classes of technology that are or are not military or dual-use technology:

(b)

prescribing classes of information that are not sensitive information:

(c)

prescribing classes of businesses that are or are not strategically important businesses:

(d)

prescribing classes of transactions that are not—

(i)

transactions of national interest:

(ii)

call-in transactions:

(iii)

overseas investments covered by the emergency notification regime:

(iv)

overseas investments in SIB assets:

(e)

prescribing a date for notification for the purposes of section 86.

(2)

The Minister must have regard to New Zealand’s international obligations when making a recommendation relating to a regulation for the purposes set out in subsection (1)(a) to (e).

(3)

The Minister must, before making a recommendation for the purpose set out in subsection (1)(c) that applies in section 82, be satisfied that a class of business is not broader than is reasonably necessary to manage risks to national security or public order.

(4)

Regulations made under subsection (1)(c) may prescribe a class of business using 1 or more of the following methods:

(a)

minimum criteria for a business to be a strategically important business (for example, minimum capacity of a generator):

(b)

the geographic area in which the business is located or provides services:

(c)

any other circumstances in which the business must operate.

Section 127: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

128 Giving effect to and unwinding of call-in transactions

A call-in transaction that has been given effect to in contravention of section 85 or a prohibition order—

(a)

is not an illegal contract for the purposes of subpart 5 of Part 2 of the Contract and Commercial Law Act 2017; and

(b)

is not void only because the transaction has been given effect to without a direction notice or because giving effect to the overseas investment in contravention of a prohibition order is an offence.

Section 128: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

129 Minister must publish decisions on call-in transactions and transaction of national interest

(1)

The Minister must publish, on an Internet site maintained by or for the regulator, notice of—

(a)

a decision about whether or not to decline consent to a transaction of national interest under section 20C:

(b)

a decision to take a risk management action.

(2)

However, subsection (1)(b) does not apply if the risk management action is a direction order referred to in section 88(1)(a) (which relates to transactions in respect of which no conditions are imposed).

(3)

The notice must include a summary of the decision made and the reasons for that decision.

(4)

However, the Minister may defer or dispense with publication (in whole or in part) if the Minister is satisfied on reasonable grounds that good reason for withholding the publication would exist under the Official Information Act 1982.

Section 129: inserted, on 16 June 2020, by section 52 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Schedule 1AA Transitional, savings, and related provisions

s 8B

Schedule 1AA: inserted, on 22 October 2018, by section 49 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Part 1 Provisions relating to Overseas Investment Amendment Act 2018

1 Existing transactions and applications not affected

(1)

The amendments made by the Overseas Investment Amendment Act 2018 apply only to transactions entered into on or after commencement.

(2)

In particular, this Act and the regulations, as in force immediately before commencement, continue to apply to the following as if the Overseas Investment Amendment Act 2018 had not been enacted:

(a)

any transaction entered into before commencement:

(b)

any application for consent that is made before commencement and that relates to a transaction entered into before commencement:

(c)

any application for consent that is made after commencement and that relates to a transaction entered into before commencement.

(3)

Subclause (2) does not limit subclause (1).

(4)

In this clause, entering into a contract or an arrangement before commencement is a transaction that must be treated as being entered into before commencement even if, immediately before commencement, the transaction is subject to a condition precedent.

(5)

If a sale or transfer of property or securities, or the issue, allotment, buyback, or cancellation of securities, occurs without a contract or an arrangement being entered into or an understanding being arrived at, the transaction must be treated as being entered into for the purpose of subclauses (1) and (2) when the property or securities are sold or transferred or the securities are issued, allotted, bought back, or cancelled (as the case may be).

(6)

In this clause, clause 2, and clause 3, commencement means the commencement of this clause.

Example

A is an overseas person.

Before commencement, A enters into a sale and purchase agreement to buy a house that is on residential (but not otherwise sensitive) land. At that time, the land is not sensitive under this Act. The agreement is subject to a finance condition.

After commencement, the finance condition is satisfied and the agreement becomes unconditional. Settlement occurs 1 month later.

The transaction does not require consent under this Act because the transaction was entered into before commencement (that is, at a time when the residential land was not sensitive land and its purchase did not require consent).

2 Existing transactions: benefit to New Zealand test relating to sensitive land that will be used for forestry activities

(1)

This clause applies to a transaction entered into before commencement if consent is not given for the transaction before commencement.

(2)

Despite clause 1,—

(a)

an application for consent for the transaction may be considered under the benefit to New Zealand test applying section 16A(3) or in accordance with section 16A(4), as inserted by the Overseas Investment Amendment Act 2018; and

(b)

the other provisions of this Act, as amended by the Overseas Investment Amendment Act 2018, apply accordingly.

(3)

Clause 1(4) and (5) applies for the purposes of this clause.

3 New information-gathering powers and service provisions apply to matters before or after commencement

(1)

Despite clause 1,—

(a)

the regulator may exercise a power under section 41 (as in force after commencement) in connection with any transaction, act, omission, or other matter regardless of whether the transaction, act, omission, or other matter occurred before or after commencement; and

(b)

sections 54 to 55A (as in force after commencement) apply to any document that is served after commencement regardless of whether the document relates to a transaction, act, omission, or other matter that occurs before or after commencement.

(2)

However, section 54 (as in force after commencement) does not apply to a holder of an exemption under section 61D if the exemption was continued in force under clause 4(2) of this schedule.

(3)

Sections 41A to 41E (as in force after commencement) apply for the purposes of subclause (1)(a).

4 Existing exemptions saved

(1)

An exemption made under section 61(1)(i) that is in force immediately before the commencement of section 46 of the Overseas Investment Amendment Act 2018 continues in force as if it were made under section 61C of this Act.

(2)

An exemption granted under regulation 37 of the Overseas Investment Regulations 2005 that is in force immediately before the commencement of section 46 of the Overseas Investment Amendment Act 2018 continues in force as if it were granted under section 61D of this Act.

(3)

However, sections 61B, 61D(3), 61E, and 61F(5)

(a)

do not apply to those exemptions as granted; and

(b)

do not apply (other than section 61D(3)) to a minor or technical amendment to those exemptions, or to a replacement of those exemptions with only minor or technical amendments, made after the commencement of section 46 of the Overseas Investment Amendment Act 2018.

5 Exemption relating to existing Resource Management Act 1991 requirements

(1)

This clause applies if an overseas person (A), or a person (B) on behalf of an overseas person, is (in effect) required to acquire an estate or interest in residential (but not otherwise sensitive) land because of—

(a)

a condition of a resource consent granted under the Resource Management Act 1991 before the commencement of this clause; or

(b)

any other requirement imposed by or under that Act and that is imposed on A or B before the commencement of this clause.

(2)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land that is the acquisition of that estate or interest in residential (but not otherwise sensitive) land and is entered into by A or B for the purpose of satisfying that condition or other requirement.

Schedule 1AA clause 5(1): amended, on 16 June 2020, by section 54(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Schedule 1AA clause 5(2): amended, on 16 June 2020, by section 54(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

6 Exemption relating to dwellings in large apartment developments where sales of dwellings have begun before assent date

(1)

This clause applies in respect of land that is being used, or intended to be used, for 1 (or more) of the following (a development):

(a)

in the construction of 1 or more multi-storey buildings as 1 development, where each building consists, or will consist, of at least 20 residential dwellings; or

(b)

to increase the number of residential dwellings in 1 or more multi-storey buildings, where the number of residential dwellings in each building will be increased by 20 or more.

Exemption certificates

(2)

A person involved in the development (the developer) may apply for an exemption certificate no later than the expiry of the 6-month period that starts on the date of Royal assent of the Overseas Investment Amendment Act 2018 (the assent date), specifying the land that constitutes the development (in a way that enables its boundaries to be clearly identified).

(3)

The relevant Minister or Ministers may grant an exemption certificate if they are satisfied that—

(a)

at least 20 new residential dwellings that are not completed at the assent date (the new dwellings) will be, or are likely to be, completed in the development before the expiry of the 5-year period that starts on the assent date; and

(b)

on or before the assent date, a transaction has been entered into by the parties in good faith in the ordinary course of business for the acquisition of 1 or more of the new dwellings that the relevant Minister or Ministers are satisfied will be, or are likely to be, completed in the development before the expiry of that 5-year period.

(4)

In considering whether the matters in subclause (3) are met, the relevant Minister or Ministers may have regard to factors such as—

(a)

whether the development has appropriate resource consent, building consent, and any other relevant authorisations; and

(b)

the developer’s financial strength; and

(c)

the previous activity of the developer (or its associates or individuals with control) regarding use of residential land; and

(d)

the previous record of the developer (or its associates or individuals with control) in complying with consent conditions or applying for consent conditions to be varied.

(5)

An exemption certificate must be applied to 100% of the new dwellings in the development.

Exemptions for dwellings to which exemption certificate applies that are purchased from developer

(6)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land in respect of a residential dwelling in the development if—

(a)

the relevant land is residential (but not otherwise sensitive) land; and

(b)

an exemption certificate applies to the dwelling under subclause (5); and

(c)

the person (the purchaser) acquires the relevant land before the expiry of the 5-year period that starts on the assent date; and

(d)

the purchaser acquires the relevant land from—

(i)

the developer; or

(ii)

another person from whom the exemption certificate permits the purchaser to acquire the relevant land in reliance on this exemption.

Other provisions

(7)

In any exemption certificate granted under this clause, the relevant Minister or Ministers—

(a)

must specify the land that constitutes the development; and

(b)

may specify persons or classes of persons for the purposes of subclause (6)(d) having regard to the purpose of this exemption, which is to allow persons involved in the construction of new dwellings to sell those dwellings (but not the development) to an overseas person as the first sale of the dwelling without the overseas person requiring consent.

(8)

The relevant Minister or Ministers may, with the agreement of the developer, vary an exemption certificate granted under this clause to the extent that it relates to the following:

(a)

the developer:

(b)

the persons specified under subclause (7)(b).

(9)

For the purposes of Part 2 of the Act, exemption certificate includes an exemption certificate granted under this clause.

(10)

Clause 1(4) and (5) applies for the purposes of this clause as if references to commencement were references to assent date.

7 References to Land Transfer Act 2017

(1)

This clause applies until the Land Transfer Act 1952 ceases to apply to instruments lodged for registration or endorsement.

(2)

The definition of lodged in section 51A of this Act must be treated as including lodged for registration or endorsement under the Land Transfer Act 1952 or the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002.

8 Section 61G applies to conditions before and after commencement

Section 61G may apply to a condition regardless of whether the condition came into effect before or after the commencement of this clause.

9 Provisions relating to exemptions in clauses 6 and 8 of Schedule 3

(1)

For the purposes of clause 6(4)(b)(i) of Schedule 3, the acquisition (or treated acquisition) of a forestry right by a related forestry investor is to be disregarded if the acquisition (or treated acquisition)—

(a)

was made before commencement; or

(b)

was made on or after commencement but resulted from a transaction referred to in clause 1(2)(a) of this schedule.

(2)

For the purposes of clause 8(4)(b)(ii) of Schedule 3, it does not matter if a regulated profit à prendre was first held (or treated as first held) by a related profit investor—

(a)

before commencement; or

(b)

on or after commencement as a result of a transaction referred to in clause 1(2)(a) of this schedule.

(3)

In this clause, commencement means the commencement of clause 1 of this schedule.

10 Review of amendments relating to forestry

(1)

The Minister must—

(a)

carry out a review of the operation and effectiveness of the amendments made by the Overseas Investment Amendment Act 2018 relating to forestry (including forestry rights); and

(b)

prepare a report on that review, including the Minister’s recommendations for amendments to this Act (if any); and

(c)

present the report to the House of Representatives as soon as practicable after it has been prepared.

(2)

The review must be started within 2 years after the commencement of this clause.

Part 2 Provisions relating to Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018

Schedule 1AA Part 2: inserted, on 30 December 2018, by section 70 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90).

11 Application

The amendments to the Act made by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018, and the regulations made under section 61A, apply only to the acquisition of rights or interests in securities or of other property, or the establishment of any business, after the commencement of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018.

12 No refunds

No person is entitled to a refund of any fee or charge paid to the regulator for a matter under Schedule 2 of the Overseas Investment Regulations 2005 on the ground that regulations made under section 61A mean that the matter is no longer relevant (for example, that a consent that had been applied for is no longer required).

13 Validation of exemptions for Australian investors

Nothing in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 affects the validity of the Overseas Investment (Australia) Amendment Regulations 2013, which are also declared to have been lawfully made and to be and always have been valid.

Part 3 Provisions relating to Overseas Investment (Urgent Measures) Amendment Act 2020

Schedule 1AA Part 3: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

14 Interpretation in this Part

(1)

In this Part,—

commencement, in relation to a provision that is being inserted or amended by the 2020 Urgent Act, means the commencement of the insertion or amendment

new, in relation to a provision of this Act, means the provision as it reads immediately after commencement

new Act means this Act as it reads immediately after the relevant provision of the 2020 Urgent Act commenced

old, in relation to a provision of this Act, means the provision as it read immediately before commencement

old Act means this Act as it read immediately before the relevant provision of the 2020 Urgent Act commenced.

(2)

Part 1 of this schedule applies when determining whether a transaction is entered into before commencement or on or after commencement (see clause 1(4) and (5)).

Schedule 1AA clause 14: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

15 Existing transactions and applications, etc

(1)

This clause applies for the purposes of applying a provision of this Act that relates to—

(a)

determining who are overseas persons, what are overseas investments in sensitive assets, and other matters in Part 1 of this Act; and

(b)

determining when consent is required and the criteria for consent under subpart 1 of Part 2 of this Act; and

(c)

the making an applications for consent and for granting consent under subpart 2 of Part 2 of this Act.

(2)

Except as provided in this Part, the new Act applies to—

(a)

transactions entered into on or after commencement:

(b)

applications received by the regulator on or after commencement, regardless of when the transaction is or was entered into:

(c)

transactions entered into before commencement in respect of which this Act requires an application to be made on or after commencement (for example, for retrospective consent):

(d)

any other matters that relate to events or circumstances on or after commencement.

(3)

The requirement for consent does not apply to a transaction that meets all of the following requirements:

(a)

the transaction has not been given effect to before commencement; and

(b)

consent has not been granted before commencement; and

(c)

the transaction would not require consent under the new Act or would be eligible for a standing consent under Part 4.

(4)

In other cases, the old Act continues to apply.

Schedule 1AA clause 15: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

16 Persons who are no longer overseas persons

(1)

A person who has been granted consent before commencement of section 7 of the 2020 Urgent Act (section 7 amended (who are overseas persons)), and who would have been entitled to the benefit of the standing consent granted by clause 31 (standing consent relating to New Zealand listed issuers and managed investment schemes), may apply to the regulator under section 27 for a variation of a consent granted to them while they were an overseas person.

(2)

To avoid doubt, this clause does not require a variation to be granted.

Schedule 1AA clause 16: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

17 Investor test

When applying new section 18A after commencement, the factors in new section 18A(4) apply to events (for example, convictions) before commencement in the same way as they apply to events after commencement.

Schedule 1AA clause 17: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

18 Time frames

Time frames set under new section 37B do not apply to any functions, powers, duties, or services under this Act that first arose for exercise, performance, or provision in respect of a matter before commencement.

Schedule 1AA clause 18: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

19 Administration

The powers in subpart 3 of Part 2 of the new Act apply to any circumstances for which the powers are conferred, whether occurring before, on, or after commencement.

Schedule 1AA clause 19: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

20 New information-gathering powers apply to matters before, on, or after commencement

The regulator may exercise a power under subpart 4 of Part 2 of the new Act in connection with any transaction, act, omission, or other matter, regardless of whether the transaction, act, omission, or other matter was entered into or otherwise occurred before, on, or after commencement.

Schedule 1AA clause 20: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

21 Enforcement
General rule: exceptions

(1)

Except as provided in this Part,—

(a)

subpart 5 of Part 2 of the old Act continues to apply in relation to contraventions, or alleged contraventions, of this Act or the regulations that occurred before commencement; and

(b)

subpart 5 of Part 2 of the new Act applies to contraventions, or alleged contraventions, of this Act or the regulations that occur on or after commencement.

Exceptions

(2)

However, the following apply to contraventions, or alleged contraventions, of this Act or the regulations, whether occurring before, on, or after commencement:

(a)

new sections 46A to 46E (enforceable undertakings):

(b)

new sections 51AAA to 51AAE (injunctions, etc).

Schedule 1AA clause 21: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

22 Existing regulations saved

Regulations that are made under an old provision, and in force immediately before commencement, continue in force until revoked as if made under the new Act.

Schedule 1AA clause 22: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

23 Existing exemptions saved

Exemptions that are granted under an old provision, and in force immediately before commencement, continue in force until revoked as if made under the new Act.

Schedule 1AA clause 23: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

24 Call-in transactions

(1)

Subpart 1 of Part 3 applies only to transactions entered into on or after commencement.

(2)

Subpart 1 of Part 3 does not apply to transactions that would have required consent under the old Act but that would not require consent under the new Act.

(3)

Subpart 1 of Part 3 does not apply to transactions in respect of which a standing consent applies under Part 4.

(4)

A notification may be given under new subpart 1 of Part 3 early, that is, at any time before the commencement of section 52 or 53 of the 2020 Urgent Act.

Schedule 1AA clause 24: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

25 Overseas investment fishing provisions

This Part applies to matters under sections 56 to 58B of the Fisheries Act 1996 in the same way as it applies to similar matters under the rest of this Act.

Schedule 1AA clause 25: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

26 Transitionals, savings, and orderly implementation of 2020 Urgent Act

(1)

The Governor-General may, by Order in Council, on the recommendation of the Minister, make regulations for the purpose of providing that, subject to any conditions stated in the regulations, specified provisions of this Act do not apply, or continue to apply or apply with modifications or additions, or both, during the whole or any part of the transitional implementation period ending on the 1-year date.

(2)

The Minister must not recommend the making of regulations under this clause unless the Minister is satisfied that the regulations—

(a)

are necessary or desirable for the orderly implementation of the 2020 Urgent Act; and

(b)

are consistent with the intended purpose of the specified provisions.

(3)

This clause is repealed on the close of the 1-year date.

(4)

Any regulations made under this clause that are in force on the 1-year date are revoked on the close of that day.

(5)

In this clause,—

1-year date means the date that is 1 year after the date on which this clause comes into force

specified provisions of the Act means any specified provisions of this Act to the extent that they are inserted, amended, or otherwise affected by the 2020 Urgent Act (including definitions and any transitional provisions in this schedule).

(6)

This clause is repealed on the 42nd day after the date on which the Overseas Investment Amendment Act (No 3) 2020 receives the Royal assent.

Schedule 1AA clause 26: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

27 Review of emergency notification regime

(1)

The Minister must review, at intervals that are no more than 90 days apart, whether the effects of the emergency continue to justify the emergency notification regime continuing in place.

(2)

In doing so, the Minister must have regard to the following:

(a)

the economic, social, and other effects of the emergency in New Zealand:

(b)

any risks to New Zealand’s national interest associated with transactions by overseas persons:

(c)

New Zealand’s international relations and international obligations.

(3)

If the Minister is not satisfied that the emergency notification regime should continue, the Minister must recommend to the Governor-General the commencement of section 53 of the Overseas Investment (Urgent Measures) Amendment Act 2020 (replacement of emergency notification regime with more permanent call-in regime).

Schedule 1AA clause 27: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Part 4 Provisions relating to period between Overseas Investment (Urgent Measures) Amendment Act 2020 and Overseas Investment Amendment Act (No 3) 2020

Schedule 1AA Part 4: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

28 Purpose and overview of this Part

(1)

The purpose of this Part is to facilitate streamlined assessment criteria for certain lower-risk transactions that are entered into during the epidemic period.

(2)

This Part contains standing consents that apply to certain lower-risk transactions that are entered into during the epidemic period.

(3)

The consents are given on a class-by-class basis, due to the difficulties caused by COVID-19.

(4)

As a result of these consents, no application needs to be made for a consent.

Schedule 1AA clause 28: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

29 Interpretation in this Part

(1)

In this Part,—

epidemic period means the period commencing with the commencement of this Part and ending with the date that is the 42nd day after the date on which the Overseas Investment Amendment Bill (No 3) receives the Royal assent

new, in relation to a provision, means the provision in the form it was introduced into Parliament, as proposed to be amended or inserted by the Overseas Investment Amendment Bill (No 3).

(2)

Other terms have the same meaning as in clause 14.

Schedule 1AA clause 29: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

30 Application

Part 1 of this schedule applies when determining whether a transaction is entered into during the epidemic period (see clause 1(4) and (5)).

Schedule 1AA clause 30: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

31 Standing consent relating to New Zealand listed issuers and managed investment schemes

(1)

Consent is granted in respect of all transactions entered into during the epidemic period that would not require consent if new sections 7 and 12(1)(b) and (2) of this Act had been enacted.

(2)

Consent is granted in respect of all transactions entered into during the epidemic period by managed investment schemes that meet all of the following requirements:

(a)

the managed investment scheme is a listed issuer:

(b)

the managed investment scheme is established under New Zealand law:

(c)

both—

(i)

50% or less of the value of the managed investment products in the managed investment scheme is invested on behalf of overseas persons; and

(ii)

25% or less of the managed investment products in the managed investment scheme that entitle holders to vote are beneficially owned by or on behalf of overseas persons who each beneficially own 10% or more of those products (alone or together with their associates).

(3)

Terms used in this clause have the same meanings as in the Financial Markets Conduct Act 2013 unless otherwise defined in this Act.

(4)

The consent is granted unconditionally.

Schedule 1AA clause 31: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

32 Standing consent relating to sensitive adjoining land

(1)

Consent is granted in respect of all transactions entered into during the epidemic period, to the extent a transaction is an overseas investment in sensitive land, that would not require consent if new Schedule 1 of this Act had been enacted.

(2)

The consent is granted unconditionally.

(3)

Section 16 applies to transactions entered into during the epidemic period, to the extent a transaction is an overseas investment in sensitive land, as if new Schedule 1 of this Act had been enacted.

Schedule 1AA clause 32: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

33 Standing consent relating to transfer of certain debt securities

(1)

Consent is granted in respect of all transactions entered into during the epidemic period, for the purposes of section 10(1)(b) of this Act, to the extent that giving effect to the transaction has the effect of a transfer of an interest or right that is solely an interest in or right to be paid money that has been deposited with or lent to, or is otherwise owing by, any person.

(2)

However, this clause does not apply if the interest or right is convertible into a security within paragraphs (a) to (d) of the definition of security in section 6(1).

(3)

The consent is granted unconditionally.

Schedule 1AA clause 33: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

34 Effect of standing consents on call-in

See clause 24, which provides, in effect, that a standing consent also exempts the transaction from subpart 1 of Part 3 (which relates to call-in transactions).

Schedule 1AA clause 34: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

35 Provisions do not apply to standing consents in this Part

The following provisions do not apply to standing consents under this Part:

(a)

section 26 (Minister may revoke consent in case of fraud):

(b)

sections 27 (consent may be varied by agreement) and 27A (consent holder may apply for new consent):

(c)

section 54 (address for service):

(d)

any provisions that impose automatic conditions.

Schedule 1AA clause 35: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

36 Other standing consents unaffected

This Part does not affect standing consents granted under Schedule 4 and that schedule does not affect standing consents granted by this Part.

Schedule 1AA clause 36: inserted, on 16 June 2020, by section 54(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Schedule 1 Sensitive land

s 12

Part 1 What land is sensitive

What land is sensitive

Land is sensitive under this Act if—

(a)

the land is or includes land of a type listed in table 1 and the area of that type of land exceeds the corresponding area threshold (either alone or together with any associated land of that type), if any; or

(b)

the land (land A) adjoins land of a type listed in table 2 and the area of land A exceeds the corresponding area threshold (either alone or together with any associated land), if any.

Table 1

Land is sensitive if it is or includes this type of land… and that type exceeds this area threshold (if any)
residential land
non-urban land5 hectares
land on islands specified in Part 2 of this schedule0.4 hectares
land on other islands (other than North or South Island, but including the islands adjacent to the North or South Island)
foreshore or seabed
bed of a lake0.4 hectares
land held for conservation purposes under the Conservation Act 19870.4 hectares
land that a district plan or proposed district plan under the Resource Management Act 1991 provides is to be used as a reserve, as a public park, for recreation purposes, or as open space0.4 hectares
land subject to a heritage order, or a requirement for a heritage order, under the Resource Management Act 1991 or by Heritage New Zealand Pouhere Taonga under the Heritage New Zealand Pouhere Taonga Act 20140.4 hectares
a historic place, historic area, wahi tapu, or wahi tapu area that is entered on the New Zealand Heritage List/Rārangi Kōrero or for which there is an application that is notified under section 67(4) or 68(4) of the Heritage New Zealand Pouhere Taonga Act 20140.4 hectares
land that is set apart as Māori reservation and that is wahi tapu under section 338 of Te Ture Whenua Maori Act 19930.4 hectares

Schedule 1 Part 1 Table 1: amended, on 22 October 2018, by section 5(1) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Schedule 1 Part 1 Table 1: amended, on 22 October 2018, by section 5(2) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Schedule 1 Part 1 Table 1: amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).

Table 2

Land A is sensitive if it adjoins land of this type… and land A exceeds this area threshold (if any)
foreshore0.2 hectares
bed of a lake0.4 hectares
land held for conservation purposes under the Conservation Act 1987 (if that conservation land exceeds 0.4 hectares in area)0.4 hectares
any scientific, scenic, historic, or nature reserve under the Reserves Act 1977 that is administered by the Department of Conservation and that exceeds 0.4 hectares in area0.4 hectares
any regional park created under the Local Government Act 19740.4 hectares
land that is listed, or in a class listed, as a reserve, a public park, or other sensitive area by the regulator under section 370.4 hectares

land that adjoins the sea or a lake and exceeds 0.4 hectares and is 1 of the following types of land:

0.4 hectares
land over 0.4 hectares that is subject to a heritage order, or a requirement for a heritage order, under the Resource Management Act 1991 or by Heritage New Zealand Pouhere Taonga under the Heritage New Zealand Pouhere Taonga Act 20140.4 hectares
land over 0.4 hectares that includes a historic place, historic area, wahi tapu, or wahi tapu area that is entered on the New Zealand Heritage List/Rārangi Kōrero or for which there is an application that is notified under section 67(4) or 68(4) of the Heritage New Zealand Pouhere Taonga Act 20140.4 hectares
land over 0.4 hectares that is set apart as Māori reservation and that is wahi tapu under section 338 of Te Ture Whenua Maori Act 19930.4 hectares

Schedule 1 Part 1 Table 2: amended, on 22 October 2018, by section 5(3) of the Overseas Investment Amendment Act 2018 (2018 No 25).

Schedule 1 Part 1 Table 2: amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).

Part 2 Specified islands

Arapawa Island

Best Island

Great Barrier Island (Aotea Island)

Great Mercury Island (Ahuahu)

Jackett Island

Kawau Island

Matakana Island

Mayor Island (Tuhua)

Motiti Island

Motuhoa Island

Rakino Island

Rangiwaea Island

Slipper Island (Whakahau)

Stewart Island/Rakiura

Waiheke Island

Whanganui Island

Schedule 2 Sensitive land that is residential land

ss 6, 16, 16B, 61

Schedule 2: replaced, on 22 October 2018, by section 26 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Contents

1Outline of this schedule
2Interpretation
3For what land is test in this Part available
4Who are qualifying individuals and key individuals
5How commitment to reside in New Zealand test is met
6Conditions for consent if commitment to reside in New Zealand test is met
7What are trigger events and how they are resolved
8Waiver relating to trigger event
9Exemption from definition of key individual
10For what land are tests in this Part available
11How increased housing test is met
12What is the relevant business
13How non-residential use test is met
14How incidental residential use test is met
15How transaction meets more than 1 test in this schedule
16Conditions attached to outcomes for residential land
17What are on-sale outcome and non-occupation outcome
18Conditions for consent if 1 or more tests in Part 3 are met
19Conditions for consent if benefit to New Zealand test is met and residential land is involved
20Exemption for large developments with shared equity, rent-to-buy, and rental arrangements
21Exemption for indirect or minority interests in overseas persons that own or control land

Part 1 Outline and definitions

1 Outline of this schedule

(1)

In this schedule,—

(a)

Part 2 sets out the commitment to reside in New Zealand test, which is a test that is only available for residential land:

(b)

Part 3 sets out the increased housing test, the non-residential use test, and the incidental residential use test, which are tests that are only available for overseas investments in sensitive land where the relevant land is residential (but not otherwise sensitive) land:

(c)

Part 4 explains how more than 1 test can be met for the purpose of section 16(1)(b)(i):

(d)

Parts 2 and 5 set out conditions that this Act requires be imposed on consents that are granted for certain overseas investments in sensitive land where the relevant land is or includes residential land.

(2)

This clause is only a guide to the general scheme and effect of this schedule.

2 Interpretation

In this schedule,—

key individual, in relation to an overseas investment, has the meaning set out in clause 4

qualifying individual has the meaning set out in clause 4

relationship property means relationship property as defined in section 8 of the Property (Relationships) Act 1976

relevant business has the meaning set out in clause 12(2) and (3)

relevant interest, in relation to residential land, means—

(a)

the estate or interest in the residential land; or

(b)

rights or interests in securities of a person who owns or controls (directly or indirectly) any estate or interest in the residential land

resolved, in relation to a trigger event, has the meaning set out in clause 7

specified period means the period or periods (or a means of calculating a period or periods) to be specified in the consent for the matter concerned

spouse or partner means spouse, civil union partner, or de facto partner

trigger event is defined in clause 7.

Schedule 2 clause 2 relevant interest paragraph (a): amended, on 16 June 2020, by section 55(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Schedule 2 clause 2 relevant interest paragraph (b): amended, on 16 June 2020, by section 55(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Part 2 Commitment to reside in New Zealand test

Availability of test

3 For what land is test in this Part available

(1)

The commitment to reside in New Zealand test is only available for residential land.

(2)

It does not matter if the residential land is also sensitive for some other reason under Part 1 of Schedule 1.

4 Who are qualifying individuals and key individuals

(1)

This clause defines certain terms for the purposes of an overseas investment in sensitive land that is considered under the commitment to reside in New Zealand test.

(2)

A person is a qualifying individual if the person—

(a)

is a New Zealand citizen; or

(b)

is ordinarily resident in New Zealand; or

(c)

is an overseas person who holds a residence class visa granted under the Immigration Act 2009; or

(d)

is an overseas person of a type that is specified in regulations made under section 61(1)(j).

(3)

The key individuals for the overseas investment are—

(a)

the relevant overseas person (if an individual); or

(b)

if the relevant overseas person is not an individual, every individual with control of the relevant overseas person (unless the individual is exempt under clause 9).

(4)

However, if—

(a)

2 individuals (A and B) who would be key individuals under subclause (3) are the spouse or partner of each other; and

(b)

either—

(i)

the relevant interest in the residential land will be acquired as relationship property of A and B and regulations exempt B from the requirement for consent under section 10(1)(a); or

(ii)

the interest in the residential land will be acquired by a company that is incorporated in New Zealand and in which all of the securities are wholly owned as relationship property by A and B, on the basis that A is a key individual,—

then B is not a key individual for the overseas investment.

(5)

B (but not A) can also be disregarded for the overseas investment when determining whether the investor test is met if—

(a)

the application for consent is under the commitment to reside in New Zealand test only; and

(b)

the investor test applies (because the relevant land is or includes residential land and land that is sensitive under Part 1 of Schedule 1 for some other reason); and

(c)

the relevant Ministers are satisfied that A is an individual with control of the relevant overseas person (for example, if the relevant overseas person is a company).

Test and conditions

5 How commitment to reside in New Zealand test is met

(1)

The commitment to reside in New Zealand test is met if all of the following are met:

(a)

the relevant Ministers are satisfied that—

(i)

every key individual is a qualifying individual; and

(ii)

the purpose of acquiring the relevant interest in the residential land is the acquisition of 1 dwelling (whether that dwelling is constructed on, or is being or will be constructed on, the residential land) for all of the key individuals to occupy as their main home or residence; and

(b)

every key individual who is an overseas person (an OP) (if any) provides a statutory declaration that the OP intends,—

(i)

at least until the declaration end date, to be present in New Zealand for at least 183 days in every 12-month period beginning on the date of consent or its anniversary in any year; and

(ii)

(if not already tax resident in New Zealand) to become tax resident in New Zealand; and

(iii)

to remain tax resident in New Zealand at least until the declaration end date.

(2)

See also clause 6 (which sets out certain conditions to be imposed on certain consents that rely on meeting this test, including a requirement for the consent holder to dispose of all relevant interests in the residential land in certain circumstances).

(3)

In this clause,—

declaration end date, in relation to an OP, means the earlier of—

(a)

the date that the OP becomes a New Zealand citizen or ordinarily resident in New Zealand; or

(b)

the date that the relevant overseas person ceases to have a relevant interest in the residential land

dwelling means a residential dwelling or a dwelling in a long-term accommodation facility

tax resident in New Zealand means a person who is a New Zealand resident under section YD 1 of the Income Tax Act 2007.

6 Conditions for consent if commitment to reside in New Zealand test is met

(1)

This clause applies if consent is to be granted for an overseas investment on the basis of the commitment to reside in New Zealand test and 1 or more key individuals are overseas persons.

(2)

Conditions must be imposed on the consent for the purpose of requiring the matters in the first column of the following table.

(3)

Conditions so imposed cease to have effect as set out in the second column of the following table.

If 1 or more key individuals are overseas persons, conditions that require the following matters must be imposed on the consent... to have effect until
1All key individuals must occupy the dwelling as their main home or residence (the occupation requirement)Every key individual who was an overseas person has become a New Zealand citizen or ordinarily resident in New Zealand
2The consent holder must dispose of all relevant interests that the consent holder has in the residential land within 12 months of the date that a trigger event occurs (unless the trigger event is resolved within those 12 months) (the disposal requirement)The trigger event regime ceases for the overseas investment (see clause 7)

(4)

See also sections 25A and 25B (in relation to the imposition of conditions generally).

Trigger events

7 What are trigger events and how they are resolved

(1)

Trigger events only occur for an overseas investment in relation to key individuals who are overseas persons (each, an OP) at the date of consent.

(2)

In the following table,—

(a)

the first column defines each trigger event in relation to an OP; and

(b)

the second column alongside sets out how the trigger event is resolved.

Trigger eventHow trigger event is resolved
1

On an anniversary date, OP has been absent from New Zealand for more than 183 days in total in the immediately preceding 12 months without a waiver

  • OP is present in New Zealand for at least 183 days in total in the 12-month period beginning on the anniversary date; or

  • A waiver is applied for and granted (see clause 8); or

  • A prescribed resolution applies; or

  • The trigger event regime ceases for OP (see subclause (3))

2

OP ceases to hold a residence class visa granted under the Immigration Act 2009

  • OP becomes the holder of a residence class visa granted under the Immigration Act 2009; or

  • OP becomes a person of a type that is specified in regulations made under section 61(1)(j); or

  • A prescribed resolution applies; or

  • The trigger event regime ceases for OP (see subclause (3))

3

OP ceases to be a person of a type that is specified in regulations made under section 61(1)(j)

  • OP becomes a person of a type that is specified in regulations made under section 61(1)(j); or

  • OP becomes the holder of a residence class visa granted under the Immigration Act 2009; or

  • A prescribed resolution applies; or

  • The trigger event regime ceases for OP (see subclause (3))

When does trigger event regime cease for OP

(3)

No further trigger events can occur for an OP—

(a)

who becomes a New Zealand citizen or ordinarily resident in New Zealand; or

(b)

whose spouse or partner becomes a New Zealand citizen or ordinarily resident in New Zealand, but only if clause 4(4)(b) applies.

(4)

Subclause (3) applies regardless of whether the OP (or the OP’s spouse or partner, as relevant) again becomes an overseas person.

When does trigger event regime cease for overseas investment

(5)

The trigger event regime ceases for the overseas investment when no further trigger events can occur in relation to any key individuals.

Interpretation

(6)

For the purposes of this clause, a person who is present in New Zealand for part of a day is treated as present in New Zealand for a whole day.

(7)

In this clause,—

anniversary date means the anniversary of the date of consent in any year

prescribed means prescribed by regulations made under section 61(1)(ja)(ii).

8 Waiver relating to trigger event

(1)

An application may be made, in respect of a person (an OP) in relation to whom a trigger event under item 1 of the table in clause 7(2) may or will occur, or has occurred, for a waiver from the requirement for the consent holder to dispose of all relevant interests in the residential land as a consequence of the trigger event occurring.

(2)

The relevant Ministers must grant the waiver if the relevant Ministers consider, in accordance with regulations made under section 61(1)(ja)(i), that the OP remains committed to residing in New Zealand.

(3)

A waiver—

(a)

may be general or may specify the 1 or more instances of the trigger event to which it applies:

(b)

may be open-ended or granted for a period:

(c)

may be made subject to any conditions.

(4)

A waiver may at any time be amended or revoked in the same way as it may be made.

Exemption

9 Exemption from definition of key individual

If, for an overseas investment in sensitive land being considered under the commitment to reside in New Zealand test, the relevant overseas person is not an individual, the relevant Ministers may determine that 1 or more of the individuals with control of the relevant overseas person is not a key individual for the overseas investment—

(a)

because of the circumstances relating to the particular relevant overseas person and the purpose of the overseas investment; and

(b)

only if the relevant Ministers are satisfied of both of the following:

(i)

that the individual will not have any beneficial interest in, or beneficial entitlement to, the relevant interest in the residential land; and

(ii)

if the relevant overseas person is a trust, that the individual is not a person who may (directly or indirectly) benefit under the trust at the discretion of the trustees and is not likely to become such a person.

Part 3 Increased housing, non-residential use, and incidental residential use tests

Availability of tests

10 For what land are tests in this Part available

The 3 tests in this Part are only available if the relevant land is residential (but not otherwise sensitive) land.

Increased housing test

11 How increased housing test is met

(1)

The increased housing test is met if the relevant Ministers are satisfied that—

(a)

1 or more of the following outcomes (the increased housing outcomes) will, or are likely to, occur on the residential land:

(i)

an increase in the number of residential dwellings constructed on the residential land (including an increase from 0):

(ii)

construction of a long-term accommodation facility on the residential land, or an increase in the number of dwellings in a long-term accommodation facility that is on the residential land:

(iii)

development works on the land to support the doing of things described in either or both of subparagraphs (i) and (ii); and

(b)

the following outcomes (as defined in clause 17) will, or are likely to, occur:

(i)

the on-sale outcome (unless exempt from this outcome under subclause (2)); and

(ii)

the non-occupation outcome.

(2)

Subclause (1)(b)(i) does not apply,—

(a)

if the increased housing outcome is as described in subclause (1)(a)(ii) and the relevant Ministers are satisfied that the long-term accommodation facility will, or is likely to, operate from the residential land within a specified period, to the extent that the relevant Ministers are satisfied that the land will, or is likely to, be used for those operations; or

(b)

if an exemption under clause 20 (exemption for large developments with shared equity, rent-to-buy, and rental arrangements) applies.

(3)

The increased housing outcomes are measured by comparing the expected result of the overseas investment against the state of the residential land before the transaction takes effect.

(4)

In this clause (and in clause 19), development works

(a)

includes the construction, alteration, demolition, or removal of a building or infrastructure; and

(b)

includes siteworks (including earthworks) that are preparatory to, or associated with, the matters set out in paragraph (a); but

(c)

does not include subdivision of land without other development works.

(5)

See also clause 18 (which sets out certain conditions to be imposed on consents that rely on meeting this test).

Non-residential use test and incidental residential use test

12 What is the relevant business

(1)

This clause applies if an overseas investment is being considered under the non-residential use test or the incidental residential use test.

(2)

The relevant Ministers may determine which 1 or more of the following is the relevant business:

(a)

a business of the relevant overseas person (A):

(b)

a business of a person (B) if A owns or controls the relevant interest in the residential land primarily for B to use the residential land in that business.

(3)

However, in making that determination, the relevant Ministers must be satisfied that the business is likely to continue for a reasonable period of time, given the circumstances and nature of the business.

13 How non-residential use test is met

(1)

The non-residential use test is met if the relevant Ministers are satisfied that the residential land will be, or is likely to be (or will, or is likely to, continue to be)—

(a)

used for non-residential purposes in the ordinary course of business for the relevant business; and

(b)

not used, nor held for future use, for any residential purposes.

(2)

In any case where the relevant Ministers are not satisfied that the matters in subclause (1)(a) and (b) (the non-residential use outcome) will, or are likely to, occur within a short period after the overseas investment is given effect under the transaction, they may determine that the non-residential use test is met if—

(a)

either—

(i)

the relevant Ministers are satisfied that the non-occupation outcome (as defined in clause 17) will, or is likely to, occur; or

(ii)

the incidental residential use test is applied for and met in respect of the residential land; and

(b)

the relevant Ministers are satisfied that, within a specified period, the non-residential use outcome will be, or is likely to be, met.

(3)

Subclause (4) applies if the relevant Ministers determine that the non-residential use test is met only in respect of part of the residential land and no other test is applied for and met in respect of the remaining part of the residential land.

(4)

The relevant Ministers may determine that the non-residential use test is met if they are satisfied that the on-sale outcome (as defined in clause 17) will, or is likely to, occur for the remaining part of the residential land.

(5)

See also clause 18 (which sets out certain conditions to be imposed on consents that rely on meeting this test).

14 How incidental residential use test is met

(1)

The incidental residential use test is met if the relevant Ministers are satisfied that—

(a)

the residential land will be, or is likely to be (or will, or is likely to, continue to be) used for residential purposes but only in support of the relevant business, where the relevant business is not (or is only exceptionally) in the business of using land for residential purposes (the incidental residential use outcome); and

(b)

having regard to that use of the residential land, the relevant interest in the residential land will be, or is likely to be, acquired in the ordinary course of the business of the relevant overseas person.

(2)

In considering whether the incidental residential use test is met, the relevant Ministers may have regard to all or any of the following:

(a)

whether any reasonable alternative exists to the acquisition of the relevant interest in the residential land:

(b)

the proximity of the residential land to the premises or operations of the relevant business:

(c)

whether the use of the residential land for residential purposes is (without limitation) as accommodation for staff engaged in the relevant business:

(d)

any other factors that seem to the relevant Ministers to be relevant in the circumstances.

(3)

Subclause (4) applies if the relevant Ministers determine that the incidental residential use test is met only in respect of part of the residential land and no other test is applied for and met in respect of the remaining part of the residential land.

(4)

The relevant Ministers may determine that the incidental residential use test is met if they are satisfied that the on-sale outcome (as defined in clause 17) will, or is likely to, occur for the remaining part of the residential land.

(5)

See also clause 18 (which sets out certain conditions to be imposed on consents that rely on meeting this test).

Part 4 How transaction meets more than 1 test in this schedule

15 How transaction meets more than 1 test in this schedule

For the purposes of section 16(1)(b)(i), different tests in this schedule can be met in respect of different parts of the residential land that is, or is included in, the relevant land so long as at least 1 test is met in respect of each part of the residential land.

Example

A is an overseas person who wishes to buy a company. The company owns land that is residential (but not otherwise sensitive) land and has no other direct or indirect interest in land that is sensitive land. The land contains a house that A wants to live in and part of the land is undeveloped land on which A wants to build houses for on-sale.

A applies for consent on the basis of the commitment to reside in New Zealand test and the increased housing test.

Part 5 Conditions attached to outcomes for residential land

Conditions

16 Conditions attached to outcomes for residential land

(1)

This Part sets out conditions to be imposed on consents that are granted for overseas investments in sensitive land on the basis that—

(a)

1 or more of the tests in Part 3 are met; or

(b)

the benefit to New Zealand test is met, the relevant land is or includes residential land, and section 16B applies.

(2)

See also

(a)

clause 6 (for conditions to be imposed on certain consents that are granted on the basis that the commitment to reside in New Zealand test is met):

(b)

sections 25A and 25B in relation to the imposition of conditions generally.

17 What are on-sale outcome and non-occupation outcome

(1)

This clause defines the on-sale outcome and the non-occupation outcome for the purposes of various conditions and related tests.

(2)

The on-sale outcome is that, within a specified period, the relevant overseas person disposes of all relevant interests in the residential land.

(3)

The non-occupation outcome is that, for so long as the relevant overseas person has a relevant interest in the residential land, none of the following occupy the land:

(a)

the relevant overseas person (A):

(b)

any overseas person (B) who has a more than 25% ownership or control interest in A:

(c)

any overseas person (C) who occupies the land otherwise than on arm’s-length terms (for example, a relative who occupies rent-free), where arm’s-length terms means terms that—

(i)

would be reasonable in the circumstances if the owner of the land (including their property agent) and C (including their associates) were connected or related only by the transaction in question, each acting independently, and each acting in its own best interests; or

(ii)

are less favourable to C than the terms referred to in subparagraph (i):

(d)

any overseas person who has a beneficial interest in, or beneficial entitlement to, the relevant interest in the residential land:

(e)

if A is a trust, a person who may (directly or indirectly) benefit under the trust at the discretion of the trustees.

(4)

However, subclause (3)(c) to (e) do not apply to a person who is entitled to occupy the land under any consent or any exemption in this Act or the regulations (for example, a person who has consent on the basis of the commitment to reside in New Zealand test may be entitled to lease a new dwelling in respect of which the developer is subject to a non-occupation outcome under the increased housing test).

Schedule 2 clause 17(3)(b): amended, on 16 June 2020, by section 55(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

18 Conditions for consent if 1 or more tests in Part 3 are met

(1)

This clause applies if consent is to be granted for an overseas investment on the basis that 1 or more of the tests in Part 3 are met.

(2)

For each test (as set out in the first column of the following table) that is met,—

(a)

the second column sets out the conditions that must be imposed on the consent in relation to the residential land in respect of which the test is met; but

(b)

if any circumstances set out in the third column relating to a condition apply, the condition need not be imposed.

If consent is granted on the basis of the following test... conditions that require the following must be imposed on the consent in relation to the residential land... except in the following circumstances
1Increased housing test1 or more increased housing outcomes (as defined in clause 11)
The on-sale outcome (as defined in clause 17)Clause 11(2)(a) applies (which relates to the operation of a long-term accommodation facility) to the extent that that clause applies
Or an exemption under clause 20 applies (which relates to large developments with shared equity, rent-to-buy, and rental arrangements) (but see clause 20(3))
The non-occupation outcome (as defined in clause 17)
2Non-residential use testThe non-residential use outcome (as defined in clause 13)
If clause 13(2) applies, the non-occupation outcome (as defined in clause 17)The incidental residential use test is applied for and met
If clause 13(4) applies, the on-sale outcome (as defined in clause 17) (but only in relation to the remaining part of the residential land)
3Incidental residential use testThe incidental residential use outcome (as defined in clause 14)
If clause 14(4) applies, the on-sale outcome (as defined in clause 17) (but only in relation to the remaining part of the residential land)
19 Conditions for consent if benefit to New Zealand test is met and residential land is involved

(1)

This clause applies for the purposes of sections 16A(1)(c) and 16B and the grant of a consent for an overseas investment on the basis that the benefit to New Zealand test is met and the relevant land is or includes residential land.

(2)

In the following table,—

(a)

the first column lists a residential land outcome; and

(b)

the second column describes the set of conditions for the residential land outcome; and

(c)

the third column describes the circumstances (if any) when an exemption may apply.

If residential land outcome is... conditions that require the following must be imposed on the consent in relation to the residential land... except in the following circumstances
1On-saleThe on-sale outcome (as defined in clause 17)
2 Use for non-residential purposesThe residential land is not used, nor held for future use, for residential dwellings or long-term accommodation facilities
3Operation of a long-term accommodation facility on the residential land (whether the facility is existing or is being or proposed to be constructed)Operation of the long-term accommodation facility
The non-occupation outcome (as defined in clause 17)
4Increased residential dwellings

Either or both of the following:

(a)

an increase in the number of residential dwellings constructed on the residential land (including an increase from 0):

(b)

development works on the land to support the doing of things described in paragraph (a)

The on-sale outcome (as defined in clause 17)An exemption under clause 20 (which relates to large developments with shared equity, rent-to-buy, and rental arrangements) applies (but see clause 20(3))
Or an exemption under clause 21 (which relates to indirect and minority interests) applies (but see clause 21(3))
The non-occupation outcome (as defined in clause 17)
5Residential purposes incidental to a relevant businessThe incidental residential use outcome (as defined in clause 14)
6Occupation as main home or residence (but this outcome is only available to the extent that the commitment to reside in New Zealand test is met)The occupation requirement (as defined in clause 6)No key individuals are overseas persons
The disposal requirement (as defined in clause 6)No key individuals are overseas persons
7Operation of existing shared equity, rent-to-buy, or rental arrangements (as defined in subclause (3)) in a development of 20 or more residential dwellings (but this outcome is only available if the consent holder (OP) is in the business of providing residential dwellings by 1 or more of those arrangements)All of the residential dwellings in the development are dealt with by OP under 1 or more of the arrangements referred to in clause 20(2)(a)
The non-occupation outcome (as defined in clause 17)
8Any other caseThe non-occupation outcome (as defined in clause 17)

(3)

In item 7 of the table in subclause (2), shared equity, rent-to-buy, or rental arrangements, in relation to an existing development, means arrangements corresponding to those referred to in clause 20(2)(a).

Exemptions from on-sale outcome and condition

20 Exemption for large developments with shared equity, rent-to-buy, and rental arrangements

(1)

The relevant Ministers may decide not to impose a condition requiring the on-sale outcome if—

(a)

a person (OP) has applied for consent under either of the following:

(i)

the increased housing test in respect of residential (but not otherwise sensitive) land:

(ii)

the benefit to New Zealand test in respect of land that is or includes residential land; and

(b)

the relevant Ministers are satisfied that the relevant land is intended to be used for the construction of 1 or more buildings that, taken together, will consist of 20 or more new residential dwellings (the large development).

(2)

The exemption in subclause (1) applies if the relevant Ministers are satisfied that—

(a)

all of the new residential dwellings in the large development will be dealt with under 1 or more of the following arrangements that are satisfactory to the relevant Ministers:

(i)

OP will jointly own the new residential dwelling with an occupier (for example, an arrangement commonly referred to as a shared equity arrangement):

(ii)

OP will divest ownership of the new residential dwelling to the occupier over a period of time (for example, an arrangement commonly referred to as a rent-to-buy arrangement):

(iii)

OP will lease the new residential dwelling to an occupier:

(iv)

OP will divest ownership of the new residential dwelling; and

(b)

there is no reason to believe that the large development will not be dealt with according to those arrangements; and

(c)

OP is in the business of providing new residential dwellings by 1 or more of those arrangements.

(3)

The exemption is subject to the following conditions:

(a)

all of the new residential dwellings in the large development are dealt with under 1 or more of the arrangements referred to in subclause (2)(a); and

(b)

OP meets the non-occupation outcome.

21 Exemption for indirect or minority interests in overseas persons that own or control land

(1)

The relevant Ministers may decide not to impose a condition requiring the on-sale outcome if—

(a)

a person (OP) has applied for consent under the benefit to New Zealand test in respect of an acquisition of rights or interests in securities referred to in section 12(b); and

(b)

as a result of that acquisition, OP will have an indirect interest or a minority interest in an overseas person (A) that directly owns or controls an estate or interest in residential land described in section 12(a) (the relevant land).

(2)

The exemption applies if the relevant Ministers are satisfied that, by reason of the circumstances relating to OP and the degree of control that OP will have in A, OP and its associates would not have, or would be unlikely to exercise or control the exercise of, any substantial influence over the relevant land.

(3)

The exemption is subject to the conditions that—

(a)

OP does not increase their ownership or control interest such that this clause would not apply; and

(b)

OP meets the non-occupation outcome.

(4)

In this clause, OP has an indirect interest in A if the relevant Ministers are satisfied that OP is an upstream party that has no direct ownership interest in A.

(5)

In this clause, OP has a minority interest in A if the relevant Ministers are satisfied that OP has a less than 50% ownership or control interest in A.

(6)

In this Act, a person (OP) has a 50% or more ownership or control interest in another person (A) if OP has—

(a)

a beneficial entitlement to, or a beneficial interest in, 50% or more of A’s securities; or

(b)

the power to control the composition of 50% or more of the governing body of A; or

(c)

the right to exercise or control the exercise of 50% or more of the voting power at a meeting of A.

Schedule 2 clause 21(1)(b): amended, on 16 June 2020, by section 55(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Schedule 3 Exemptions from requirement for consent

s 11A

Schedule 3: inserted, on 22 October 2018, by section 27 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Exemptions in respect of overseas investments in sensitive land

1 Māori freehold land

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land by a Māori person where the relevant land is Māori freehold land for which the person is a member of the preferred classes of alienees (where those terms have the same meaning as in Te Ture Whenua Maori Act 1993).

Exemptions in respect of overseas investments in sensitive land that is residential land[Repealed]

Heading: repealed, on 16 June 2020, by section 56(1) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

2 Periodic lease

(1)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land if the estate or interest in land described in section 12(a) is a periodic lease.

(2)

In this clause, periodic lease means a lease that—

(a)

is terminable at will, whether by the grantor or the grantee (including a periodic tenancy within the meaning of section 2(1) of the Residential Tenancies Act 1986); and

(b)

offers no certainty of term of 3 years or more (including rights of renewal, whether of the grantor or the grantee).

Schedule 3 clause 2(1): replaced, on 16 June 2020, by section 56(2) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Exemptions in respect of overseas investments in sensitive land that is residential (but not otherwise sensitive) land

3 Residential tenancy for less than 5 years

(1)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land if—

(a)

the estate or interest in land described in section 12(a) is a residential tenancy for a term of less than 5 years (including rights of renewal, whether of the grantor or grantee); and

(b)

the relevant land is residential (but not otherwise sensitive) land.

(2)

In this clause, residential tenancy means a tenancy to which the Residential Tenancies Act 1986 applies (including a periodic tenancy within the meaning of section 2(1) of that Act).

Schedule 3 clause 3(1)(a): amended, on 16 June 2020, by section 56(3) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

4 Dwellings in large apartment developments that are purchased off plans

(1)

This clause applies in respect of land that is being used, or intended to be used, for 1 (or more) of the following (a development):

(a)

in the construction of 1 or more multi-storey buildings as 1 development, where each building consists, or will consist, of at least 20 residential dwellings; or

(b)

to increase the number of residential dwellings in 1 or more multi-storey buildings, where the number of residential dwellings in each building will be increased by 20 or more.

Exemption certificates

(2)

A person involved in the development (the developer) may apply for an exemption certificate if regulations are in force under section 61(1)(jb).

(3)

The relevant Minister or Ministers may grant an exemption certificate if they are satisfied that the development is likely to be completed, having regard to factors such as—

(a)

whether the development has appropriate resource consent, building consent, and any other relevant authorisations; and

(b)

the developer’s financial strength; and

(c)

the previous activity of the developer (or its associates or individuals with control) regarding use of residential land; and

(d)

the previous record of the developer (or its associates or individuals with control) in complying with consent conditions or applying for consent conditions to be varied.

(4)

An exemption certificate may be applied to up to the maximum percentage, as prescribed in the regulations made under section 61(1)(jb), of the residential dwellings in the development.

Exemptions for dwellings to which exemption certificate applies

(5)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land in respect of a residential dwelling in the development if—

(a)

the relevant land is residential (but not otherwise sensitive) land; and

(b)

an exemption certificate applies to the dwelling under subclause (4); and

(c)

the person (the purchaser) makes the investment before the construction of the dwelling is complete.

Example

OP1 buys off the plans an apartment to which an exemption certificate applies, using the exemption in subclause (5). So the on-sale outcome does not apply to OP1 (but see subclause (6)(b) for the non-occupation outcome).

OP2 later buys a different apartment to which the exemption certificate does not apply. OP2 must apply for consent (but see section 16(3)(b) for an exemption from the investor test if OP2 applies for consent under the increased housing test.) OP2 must comply with the conditions of that consent as to the on-sale outcome and the non-occupation outcome.

Other provisions

(6)

The relevant Ministers may grant an exemption certificate subject to the conditions that they think appropriate, and must impose conditions as follows:

(a)

conditions that enable the regulator to identify and monitor the dwellings to which the certificate is applied; and

(b)

conditions that impose the non-occupation outcome on purchasers who rely on the exemption certificate under subclause (5); and

(c)

conditions that enable the non-occupation outcome to be monitored by the regulator.

(7)

Those conditions may be conditions—

(a)

that apply to either the developer (as a condition of the exemption certificate) or the purchaser (as a condition of the exemption in subclause (5)), or both; and

(b)

that require both the developer and the purchaser to provide the regulator with the name, contact details, and other details of dwellings to which the certificate is applied and the purchasers of those dwellings.

5 Hotel units acquired and leased back for hotel use

(1)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land if—

(a)

the relevant land is residential (but not otherwise sensitive) land; and

(b)

the relevant land is being used, or is intended to be used,—

(i)

in the construction of a hotel that has 20 or more units, or to increase by 20 or more the number of units in a hotel; or

(ii)

for the operation of a hotel that has 20 or more units; and

(c)

the interest in land described in section 12(a) is either—

(i)

an interest in 1 (or more) of those units that is acquired by a person (a purchaser) and that is immediately subject to a lease-back to the hotel company; or

(ii)

a lease of 1 (or more) of those units by the purchaser to the hotel company (a lease-back).

(2)

The exemption is subject to the following conditions:

(a)

the lease-back must meet the following requirements at all times on and after the acquisition of the purchaser’s interest:

(i)

the purchaser cannot occupy, reserve, or use the unit for more than 30 days in each year; and

(ii)

for the rest of the year, the unit must be managed and used for the general purposes of operating the hotel; and

(b)

when the lease-back period ends, the purchaser must either, within 12 months of that period ending,— —

(i)

grant to the hotel company a new lease-back of the unit that complies with the matters in paragraph (a); or

(ii)

dispose of its interest in the unit; and

(c)

the purchaser must not occupy, reserve, or use the unit while it is not leased back to a hotel company.

(3)

In this clause,—

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

hotel company means—

(a)

the person (HotelCo) that operates the hotel or that will operate the hotel after the hotel is completed; or

(b)

any person involved in the development of the hotel (the developer), provided that the developer has assigned its interest in the land to HotelCo, or will assign it to HotelCo immediately after the hotel is completed to the extent that it relates to the relevant unit.

Exemptions in respect of overseas investments in sensitive land involving forestry rights

6 Area of forestry right less than 1 000 hectares

(1)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land (the relevant forestry investment) if—

(a)

the relevant forestry investment is the acquisition of a forestry right (the relevant forestry right); and

(b)

the area of the relevant forestry right is less than 1 000 hectares.

(2)

Subclause (3) applies to a transaction that will result in an overseas investment in sensitive land (the relevant forestry investment) if—

(a)

the relevant forestry investment is the acquisition of rights or interests in securities of a person who owns or controls (directly or indirectly) a forestry right that is an interest in land described in section 12(a) (the relevant forestry right); and

(b)

the area of the relevant forestry right is less than 1 000 hectares.

(3)

To the extent that the transaction will result in the relevant forestry investment, it does not require consent for the purposes of section 10(1)(a) in relation to the relevant forestry right.

(4)

Subclause (1) or (3) (as the case may be) does not apply if, immediately after the relevant forestry investment is given effect to, the sum of the following areas is 1 000 hectares or more:

(a)

the area of the relevant forestry right:

(b)

the combined area of all other forestry rights—

(i)

that related forestry investors acquire (or are treated as acquiring) in the same calendar year as that in which the relevant forestry investment is given effect to; and

(ii)

that are for a term of 3 years or more (including rights of renewal, whether of the grantor or grantee).

(5)

For the purposes of subclause (4)(b)(i),—

(a)

related forestry investor means—

(i)

the person who makes the relevant forestry investment; or

(ii)

any associate of that person; or

(iii)

a body corporate related to that person or to any associate of that person (as determined in accordance with section 12(2) of the Financial Markets Conduct Act 2013); and

(b)

a related forestry investor (B) is treated as acquiring a forestry right if—

(i)

B acquires rights or interests in securities of a person (C) who owns or controls (directly or indirectly) the forestry right and, as a result of the acquisition, B has (either alone or together with B’s associates) a more than 25% ownership or control interest in C; or

(ii)

the forestry right comes under the ownership or control (direct or indirect) of a person in whom B has (either alone or together with B’s associates) a more than 25% ownership or control interest; and

(c)

it does not matter if a forestry right is acquired (or treated as acquired) by a related forestry investor before the relevant forestry investment is given effect to.

(6)

In this clause, area, in relation to a forestry right, means the area of land covered by the forestry right (including any right, whether of the grantor or grantee, to have the original area increased).

Schedule 3 clause 6(5)(b)(i): amended, on 16 June 2020, by section 56(4) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Schedule 3 clause 6(5)(b)(ii): amended, on 16 June 2020, by section 56(4) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

7 Crown forestry licence converted into forestry right

(1)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land if—

(a)

the overseas investment is the acquisition of a forestry right; and

(b)

immediately before the forestry right is acquired, the area of land covered by the forestry right (the covered land)—

(i)

is fully covered by a Crown forestry licence granted under section 14 of the Crown Forest Assets Act 1989 (whether or not the covered land is the only area of land covered by the Crown forestry licence); but

(ii)

is no longer regarded as Crown forest land; and

(c)

the person who acquires the forestry right is the licensee of the Crown forestry licence immediately before the acquisition of the forestry right or is a person who is related to that licensee; and

(d)

the term of the forestry right (including rights of renewal, whether of the grantor or grantee) expires no later than 35 years after the date on which the covered land ceased to be regarded as Crown forest land.

(2)

For the purposes of subclause (1)(c), a person (A) is related to the licensee if—

(a)

the licensee owns and controls 95% of A; or

(b)

A owns and controls 95% of the licensee; or

(c)

a third person owns and controls 95% of the licensee and of A.

(3)

For the purposes of subclause (2), a person (X) owns and controls 95% of another person (Y) if X has—

(a)

a beneficial entitlement to, or a beneficial interest in, 95% or more of Y’s securities; and

(b)

the power to control the composition of 95% or more of the governing body of Y; and

(c)

the right to exercise, or control the exercise of, 95% or more of the voting power at a meeting of Y.

Exemptions in respect of overseas investments in sensitive land involving regulated profits à prendre that are not forestry rights

8 Area of regulated profit à prendre less than 5 hectares

(1)

A transaction does not require consent for the purposes of section 10(1)(a) to the extent that it will result in an overseas investment in sensitive land (the relevant profit investment) if—

(a)

the relevant profit investment is the acquisition of a regulated profit à prendre that is not a forestry right (the relevant profit); and

(b)

the area of the relevant profit is less than 5 hectares.

(2)

Subclause (3) applies to a transaction that will result in an overseas investment in sensitive land (the relevant profit investment) if—

(a)

the relevant profit investment is the acquisition of rights or interests in securities of a person who owns or controls (directly or indirectly) a regulated profit à prendre that is an interest in land described in section 12(a) but is not a forestry right (the relevant profit); and

(b)

the area of the relevant profit is less than 5 hectares.

(3)

To the extent that the transaction will result in the relevant profit investment, it does not require consent for the purposes of section 10(1)(a) in relation to the relevant profit.

(4)

Subclause (1) or (3) (as the case may be) does not apply if, immediately after the relevant profit investment is given effect to, the sum of the following areas is 5 hectares or more:

(a)

the area of the relevant profit:

(b)

the combined area of all other regulated profits à prendre

(i)

that are not forestry rights; and

(ii)

that are held (or treated as held) by related profit investors; and

(iii)

the areas of which adjoin the area of the relevant profit; and

(iv)

that are for a term of 3 years or more (including rights of renewal, whether of the grantor or grantee).

(5)

For the purposes of subclause (4)(b)(ii),—

(a)

related profit investor means—

(i)

the person who makes the relevant profit investment; or

(ii)

any associate of that person; or

(iii)

a body corporate related to that person or to any associate of that person (as determined in accordance with section 12(2) of the Financial Markets Conduct Act 2013); and

(b)

held includes owned or in the possession of by any means; and

(c)

a related profit investor (B) is treated as holding a regulated profit à prendre if the regulated profit à prendre is under the ownership or control (direct or indirect) of a person in whom B has (either alone or together with B’s associates) a more than 25% ownership or control interest; and

(d)

it does not matter if a regulated profit à prendre is first held (or treated as first held) by a related profit investor before the relevant profit investment is given effect to.

(6)

In this clause, area, in relation to a regulated profit à prendre, means the area of land covered by the regulated profit à prendre (including any right, whether of the grantor or grantee, to have the original area increased).

Schedule 3 clause 8(5)(c): amended, on 16 June 2020, by section 56(5) of the Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21).

Other exemptions

9 Other exemptions

See the regulations for other exemptions.

Schedule 4 Standing consents

s 23A

Schedule 4: inserted, on 22 October 2018, by section 28 of the Overseas Investment Amendment Act 2018 (2018 No 25).

Different types of standing consents

1 Residential land: commitment to reside in New Zealand standing consents
Application

(1)

A person who applies for consent under the commitment to reside in New Zealand test may apply for a standing consent.

Criteria for grant of standing consent

(2)

The relevant Ministers may, despite section 14(1), grant a standing consent if the relevant Ministers are satisfied—

(a)

that the investor test is met, if the transaction for which consent is sought may include residential land that is also sensitive for some other reason under Part 1 of Schedule 1; and

(b)

that the commitment to reside in New Zealand test is met.

Conditions

(3)

The standing consent must be granted subject to the following conditions:

(a)

conditions that ensure that the commitment to reside in New Zealand test continues to be met:

(b)

the conditions that must be imposed under clause 6 of Schedule 2 on consents granted on the basis of the commitment to reside in New Zealand test:

(c)

a condition that the regulator must be notified of the transaction to which the consent will apply, at the time, and in the manner, specified in the consent.

(4)

The standing consent may be granted subject to additional conditions.

Use-by date

(5)

The standing consent has a use-by date that is the earliest of the following:

(a)

the date on which the consent holder makes an overseas investment in sensitive land in respect of 1 residential dwelling or dwelling in a long-term accommodation facility:

(b)

the date on which a trigger event (as defined in clause 7 of Schedule 2) occurs:

(c)

any date that may be specified in the consent as its use-by date.

2 Residential land: other types of standing consents
Application

(1)

A person may apply for a standing consent in respect of residential (but not otherwise sensitive) land if the person applies under the following tests:

(a)

the increased housing test; or

(b)

the non-residential use test; or

(c)

the incidental residential use test.

Criteria for grant of standing consent

(2)

The relevant Ministers may, despite section 14(1), grant a standing consent if the relevant Ministers are satisfied—

(a)

that the investor test is met (unless that test does not apply); and

(b)

that the conditions referred to in subclauses (3) and (4) will be, or are likely to be, met, after having regard to factors such as—

(i)

the applicant’s financial strength; and

(ii)

the previous activity of the applicant (or associates or individuals with control of the relevant overseas person) regarding use of residential land; and

(iii)

the previous record of the applicant (or associates or individuals with control of the relevant overseas person) in complying with consent conditions or applying for consent conditions to be varied.

Conditions

(3)

The standing consent must be granted subject to the following conditions:

(a)

conditions for the purpose of ensuring that the relevant test in subclause (1) is met for each overseas investment to which the consent will apply:

(b)

the conditions that must be imposed under Part 5 of Schedule 2 on consents that are granted on the basis of the relevant test:

(c)

a condition that the regulator must be notified of the transaction, or each transaction, to which the consent will apply at the time, and in the manner, specified in the consent.

(4)

The standing consent may be granted subject to additional conditions, which may include—

(a)

conditions about the residential land (for example, limits by total land area, location of land, and geographic type of land); and

(b)

conditions about outcomes (for example, time frames for completing developments); and

(c)

limits on the number of overseas investments for which the standing consent can be relied on.

Use-by date

(5)

The standing consent may specify a use-by date.

3 Forestry activities
Application

(1)

A person may apply for a standing consent for transactions in respect of overseas investments in sensitive land for which the benefit to New Zealand test will be met in accordance with section 16A(4).

Criteria for grant of standing consent

(2)

The relevant Ministers may, despite section 14(1), grant a standing consent if the relevant Ministers are satisfied—

(a)

that the investor test is met; and

(b)

that the conditions referred to in subclauses (3) and (4) will be, or are likely to be, met; and

(c)

without limiting paragraph (b), that the applicant has, and will continue to have, adequate processes in place for meeting, at all relevant times, the requirements set out in regulations made for the purposes of section 16A(4)(d); and

(d)

without limiting paragraph (b), that the applicant has a strong record of 1 or both of the following or of the following taken together:

(i)

compliance with this Act and with conditions and other requirements imposed under it (including providing the regulator with complete and accurate information):

(ii)

compliance with corresponding laws, and with conditions and other requirements imposed under corresponding laws, in territories other than New Zealand (including providing regulators with complete and accurate information).

Conditions

(3)

The standing consent must be granted subject to the following conditions:

(a)

conditions for the purpose of ensuring that the benefit to New Zealand test is met in accordance with section 16A(4) for each overseas investment to which the consent will apply (subject to subclauses (5) and (6)):

(b)

for an overseas investment where the relevant land is or includes farm land, a condition that effect must not be given to the overseas investment in reliance on the consent unless the criterion in section 16(1)(f) has been met:

(c)

a condition—

(i)

that at the time, and in the manner, specified in the consent, the regulator must be notified—

(A)

of each transaction to which the consent will apply; and

(B)

in relation to each such transaction, of how the requirements set out in regulations made for the purposes of section 16A(4)(d) will be met for each overseas investment resulting from the transaction; and

(ii)

that the notification of a transaction must include any other information required by the regulator in relation to the transaction.

(4)

The standing consent may be granted subject to additional conditions, which may include—

(a)

conditions about the land in relation to which the consent may apply (for example, limits by total land area, location of land, and geographic type of land); and

(b)

limits on the number of overseas investments for which the standing consent can be relied on.

(5)

For an overseas investment that involves a forestry right, the conditions of the standing consent may provide that, to the extent set out in the conditions, the requirement in section 16A(4)(e) does not have to be met in relation to a crop of trees that is harvested under the forestry right if the forestry right expires—

(a)

upon the completion of the harvesting; or

(b)

after a short period (as determined in accordance with the conditions) following the completion of the harvesting.

(6)

For the purposes of subclause (5), an overseas investment involves a forestry right if the overseas investment is the acquisition of—

(a)

the forestry right; or

(b)

rights or interests in securities of a person who owns or controls (directly or indirectly) the forestry right.

Variation of conditions following notification of transaction

(7)

After the regulator is notified of a transaction as referred to in subclause (3)(c), the relevant Ministers may, in relation to an overseas investment that results (or will result) from the transaction, vary the conditions of the standing consent to reflect any information provided as referred to in subclause (3)(c)(i)(B).

Variation of conditions on ground that consent holder does not have sufficient ownership or control of relevant land

(8)

The holder of the standing consent may, before an overseas investment is given effect to in reliance on the consent, apply to the relevant Ministers for a variation of the conditions of the standing consent in relation to the overseas investment.

(9)

The application may be made only on the ground that the holder of the standing consent (together with the holder’s associates) will not have sufficient ownership or control (direct or indirect) of rights in respect of the relevant land to ensure—

(a)

that a requirement set out in regulations made for the purposes of section 16A(4)(d) will be met; or

(b)

that the requirement set out in section 16A(4)(e) will be met.

(10)

If satisfied of that ground, the relevant Ministers may, in relation to the overseas investment, vary the conditions of the standing consent in a way that is consistent with their power under section 16A(7) or (8).

Variation of conditions to reflect new regulations, etc

(11)

Subclause (12) applies if, after the standing consent is granted, there come into force any new regulations, or any amendment or revocation of any regulations, that make any provision referred to in section 16A(4).

(12)

The relevant Ministers may vary the conditions of the standing consent to reflect the new regulations or the amendment or revocation.

(13)

See also clause 6, which applies in relation to a variation under subclause (12).

Meaning of vary

(14)

In subclauses (7) to (13), vary, in relation to the conditions of the standing consent, includes to add or revoke 1 or more conditions.

Use-by date

(15)

The standing consent may specify a use-by date.

Provisions applying to all standing consents

4 Revocation or variation of standing consents

The relevant Ministers may revoke or vary a standing consent (including by varying, adding to, or revoking the conditions of a standing consent) at any time if the relevant Ministers are not satisfied that—

(a)

the criteria for the grant of the standing consent were met or are still met; or

(b)

the conditions of the standing consent have been complied with.

5 Process before revocation or variation of standing consents

(1)

The relevant Ministers must provide the consent holder with an opportunity to comment before revoking or varying a standing consent under clause 4.

(2)

However, subclause (1) does not apply if the revocation or variation is at the consent holder’s request or is done under subpart 2 of Part 2 of this Act.

6 Effect of revocation or variation of standing consents

(1)

The revocation or variation of a standing consent under clause 3(12) or 4 does not apply to any transaction entered into in reliance on the consent before the revocation or variation.

(2)

Clause 1(4) and (5) of Schedule 1AA applies with any necessary modifications when deciding when a transaction is entered into.

7 Schedule does not limit other provisions

This schedule does not limit other provisions of this Act (for example, subpart 2 of Part 2).

Reprints notes
1 General

This is a reprint of the Overseas Investment Act 2005 that incorporates all the amendments to that Act as at the date of the last amendment to it.

2 Legal status

Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes

Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.

4 Amendments incorporated in this reprint

Education and Training Act 2020 (2020 No 38): section 668

Overseas Investment (Urgent Measures) Amendment Act 2020 (2020 No 21)

Overseas Investment Amendment Act 2018 (2018 No 25)

Contract and Commercial Law Act 2017 (2017 No 5): section 347

Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90): Part 6 (as amended by Trans-Pacific Partnership Agreement (CPTPP) Amendment Act 2018 (2018 No 41) and Overseas Investment Amendment Act 2018 (2018 No 25))

Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26): section 107

Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19): section 8

Search and Surveillance Act 2012 (2012 No 24): section 286

Criminal Procedure Act 2011 (2011 No 81): section 413

Immigration Act 2009 (2009 No 51): section 406(1)

Policing Act 2008 (2008 No 72): section 116(a)(ii)

Overseas Investment Act Commencement Order 2005 (SR 2005/219)