Māori Trustee and Māori Development Amendment Bill

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Māori Trustee and Māori Development Amendment Bill

Government Bill

181—1

Explanatory note

General policy statement

The Bill introduces changes arising out of a review of the Maori Trustee and Maori Trust Office and out of work looking at ways to bring together functions supporting Māori business being undertaken by Te Puni Kōkiri, the Maori Trustee, and potentially other organisations. The Bill amends the title of the Maori Trustee Act 1953 to the Māori Trustee and Māori Development Act 1953 to better reflect the amendments.

A number of changes are made affecting the Māori Trustee which will better place the Maori Trustee to meet the Trustee’s statutory responsibilities in the future. The Maori Trustee is currently an office conferred on an employee of Te Puni Kōkiri and the staff of the Maori Trust Office are also employees of Te Puni Kōkiri. The Bill establishes the Māori Trustee as a stand-alone organisation, and able to appoint employees. This change will underline the independence of the Māori Trustee when exercising the Trustee’s responsibilities.

Reflecting the stand-alone nature of the Māori Trustee, the Bill amends the way in which the Māori Trustee is appointed. The Minister of Māori Affairs will appoint the Māori Trustee for a renewable term of up to five years. The grounds for removal from office are specified in the Bill. The Māori Trustee’s remuneration will be determined by the Remuneration Authority. These provisions are consistent with the independence that the Māori Trustee needs to exercise his or her fiduciary responsibilities.

The Bill will include the Māori Trustee on Schedule 4 of the Public Finance Act 1989. This will apply certain reporting requirements to the Māori Trustee, in particular an annual report (including a statement of service performance). A funding agreement between the Crown and the Māori Trustee will be developed through the usual administrative processes. The Bill’s provisions are intended to put in place sound financial accountability requirements for the Crown funding received through this funding agreement, while maintaining the Māori Trustee’s independence.

The Bill also amends the way in which interest paid on money held in trust in the Common Fund is determined. The new process will better reflect appropriate market rates, whilst also taking into account the specific conditions under which the Māori Trustee operates. The Māori Trustee will be required to pay the interest earned on money held in trust in the Common Fund, less an administrative fee and will be required to review regularly the amounts paid, taking into account appropriate market rates.

The Bill also sets up a new independent statutory corporation to further Māori economic development by utilising the potential of resources available to Māori. The working name for the corporation is Māori Business Aotearoa New Zealand (MBANZ).

The board of the statutory corporation will be chaired by the Māori Trustee, with the remaining board members appointed by the Minister of Finance and the Minister of Māori Affairs. The board will have up to seven members, enabling a good range of skills and experience to set the direction for the new corporation. The board will be responsible for a new fund (the MBANZ Fund), to be used in carrying out the board’s functions.

The MBANZ Fund will comprise a significant contribution from the Government, a contribution of $35 million transferred from the General Purposes Fund (one of the funds for which the Maori Trustee is responsible under the Maori Trustee Act 1953) and, potentially, future contributions from other organisations.

Combining these contributions in the new fund will mean that a more cohesive and focussed approach to development can be taken by the new corporation.

The Bill also sets out provisions to deal with the potential for conflicts of interest between the Māori Trustee’s fiduciary responsibilities and his or her role as chair of MBANZ. These include defining when the Māori Trustee has a material interest and setting out when the Māori Trustee must stand aside from decisions.

The Bill includes a range of measures to ensure that the statutory corporation is accountable to Māori and to the Minister of Finance and the Minister of Māori Affairs, reflecting the nature of the contributions to the new fund. These provisions will help to ensure that the corporation remains focussed on the furthering of Māori economic development as set out in the Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides that the Bill comes into force on 1 July 2008.

Clause 3 provides that the Bill amends the Maori Trustee Act 1953 (the principal Act).

Part 1
Amendments to principal Act

Part 1 amends the Maori Trustee Act 1953. It repeals the Long Title (clause 4) and replaces the Title to reflect the new scope of the Bill (clause 5).

Clause 6 introduces key definitions into section 2.

Clause 7 repeals sections 3 to 6 and associated headings and inserts a Part 1 heading and new sections 3 to 6E. The Māori Trustee is established, continuing to be a corporation sole with perpetual succession. The capacity and powers of the Māori Trustee are set out and the independence of the Māori Trustee acting in his or her fiduciary capacity from direction or instruction by the Crown is provided for. These clauses also set out the appointment requirements for the Māori Trustee, who is appointed by the Minister of Māori Affairs for a maximum period of 5 years (though may be reappointed), with provision for termination of an appointment. The person who holds the position of Maori Trustee at the commencement of this Bill will continue in office for up to 5 years from that date. The Bill provides for the Māori Trustee to appoint a Deputy Māori Trustee and staff and permits delegation of the Māori Trustee’s powers, functions, and duties.

Clause 8 inserts a new cross heading and clause 9 amends section 17 by providing for the use, as agreed from time to time by the Crown and the Māori Trustee, of the Appropriation Account, a new account in the Māori Trustee’s Account.

Clause 10 amends section 23 to provide for the inclusion of the Appropriation Account in the Māori Trustee’s Account. A further amendment also provides that money received by way of Crown appropriation must be credited to the Appropriation Account.

Clause 11 repeals section 26 and substitutes new sections 26 to 26B to deal with money held in the Common Fund. In particular, new section 26 provides that all money held in trust in the Common Fund is invested in that fund. Interest is payable on that money in accordance with the formula set out in subsection (2). The formula provides for interest to be paid on the basis of money received by the Māori Trustee as income on the money in the Common Fund, less a management fee, calculated in accordance with regulations.

The Māori Trustee is required to review on a quarterly basis the interest paid to account holders so as to ascertain that the interest paid is in line with fair market rates paid on funds of a comparable size to those of the Common Fund, and subject to comparable conditions.

Interest must be paid out of the General Purposes Fund.

New sections 26A and 26B provide respectively for management fees to be charged by the Māori Trustee and the disclosure required of the Māori Trustee. Regulations are required for certain associated matters.

Clause 12 repeals section 41 and provides that the Māori Trustee must pay out of the General Purposes Fund any money required by the Minister of Finance for the recovery of former Maori Trust Office salaries and other expenses, to the extent that they were incurred before 1 July 2008, the date of the disestablishment of that office.

Clause 13 substitutes new section 52, which sets out new regulation-making powers.

Clause 14 repeals section 53 which is now spent.

Clause 15 inserts new Part 2 of the principal Act, consisting of new sections 53 to 74.

This new Part establishes a new statutory corporation, Māori Business New Zealand Aotearoa (MBANZ). Subpart 1 (new sections 54 to 60) provides for the establishment of MBANZ, its functions, powers, and its independence, and establishes the MBANZ Fund. This fund consists of cash or assets to the sum of $35 million transferred from the General Purposes Fund of the Māori Trustee as a contribution to the MBANZ Fund.

Subpart 2 (new sections 61 to 65) provides for the governing body of MBANZ and its powers and duties. The members are appointed by the Minister of Finance and the Minister of Māori Affairs (responsible Ministers). This subpart also provides for the setting up of subsidiaries by the Board of MBANZ.

Subpart 3 (new sections 66 to 74) sets out the accountability requirements for MBANZ. These include a strategic plan, the annual report and financial statement, and requirements to supply information to the responsible ministers as requested, convene at least 1 meeting for members of the public to consider the performance of MBANZ, and commission an independent review of the performance of MBANZ, the first in 2013 and then at 5-yearly intervals.

Clause 16 substitutes a new schedule in the principal Act.

Part 2
Transitional provisions and consequential amendments

Clauses 17 to 29 provide for transitional matters relating to the change from the present arrangements under the Maori Trustee Act 1953 to the new arrangements under this Bill. The transitional matters cover the vesting of the assets of the former Maori Trustee, the dissolution of the Maori Trust Office, and standard arrangements that relate to the transition of contracts and other instruments, the status of existing securities, the continuation of proceedings, the transfer of employees, and protection of their employment conditions, including membership of the Government Superannuation Fund. In these transitional provisions, the terms “new Māori Trustee” and “old Maori Trustee” are used to clarify the distinction that is otherwise signalled by the spelling of that person’s title.

Clause 30 provides for consequential and other amendments as set out in Schedule 2. This clause also ensures that the Statute book as a whole is appropriately updated in relation to the name of the principal Act and provides that any references to the “Maori Trustee” or “Maori Trust Office” must be read as references to the “Māori Trustee”.

Schedules

Schedule 1 substitutes a new schedule in the Māori Trustee and Māori Development Act 1953.

Schedule 2 sets out consequential amendments to other Acts.

Regulatory impact statement—Māori Trustee

Executive summary

The review of the Maori Trust Office and role of the Maori Trustee under the Maori Trustee Act 1953 identified a range of issues for which regulatory changes are proposed. The changes are intended to establish the Māori Trustee to better meet his or her statutory functions. The amendments improve the Māori Trustee’s financial accountability for Crown funding while maintaining his or her independence. The amendments will also adjust the Minister of Finance’s power of requisition and ensure that the interest paid on money held in trust in the Common Fund takes into account appropriate market rates.

In this discussion of the amendments to the Maori Trustee Act 1953, references to the Maori Trustee before 1 July 2008 use the orthography of the 1953 Act; references to the Māori Trustee under the amended principal Act, the Māori Trustee and Māori Development Act 1953, use the orthography of that Act.

The preferred options that have been identified as best addressing these issues are to establish the Māori Trustee as an independent statutory body corporate included in Schedule 4 of the Public Finance Act 1989, to amend the requisition powers of the Minister of Finance once a funding agreement with the Māori Trustee is reached, and to amend the interest provisions so that there is a clearer requirement for the Māori Trustee to take into account appropriate market rates.

Adequacy statement

Te Puni Kōkiri has reviewed this regulatory impact statement in terms of Cabinet Office Circular (07)3 and considers it to be adequate.

Status quo and problem

The proposed regulatory changes address the following issues identified in the course of the review of the Maori Trustee:

  • the need for improved accountability for Crown funding of the Māori Trustee, while maintaining the Māori Trustee’s independence:

  • the implications for the power of the Minister of Finance to recover funds from the Māori Trustee when the proposed funding agreement has been concluded:

  • the need to ensure that the interest paid on money held in trust in the Common Fund is set in a way that takes into account appropriate market rates.

The Maori Trustee is currently a corporation sole established under the Maori Trustee Act 1953. That Act provides that the Chief Executive of Te Puni Kōkiri may, with the prior consent of the State Services Commissioner, confer the office of Maori Trustee on an officer of Te Puni Kōkiri. The Maori Trust Office is an office of the public service, and its staff are employees of Te Puni Kōkiri. The Maori Trustee is subject to the jurisdiction of the Auditor-General, and although not obliged to do so, the Maori Trustee reports annually to Parliament.

The status quo is not the preferred option. Accountability for Crown funding is not as transparent or robust as it is possible to achieve under the alternative options. In addition, while the Maori Trustee is legally distinct from the Crown, there is a risk that the Maori Trustee’s independence may be perceived to be compromised, given the Maori Trustee’s placement within a government department.

Under the Maori Trustee Act 1953, the rate of interest paid to beneficial owners on monies held in trust in the Common Fund is set by the Maori Trust Regulations 1954. There is currently no explicit requirement to review the interest rates. During periods of high inflation a significant gap can emerge (and historically has emerged) between the rates obtained by the Maori Trustee and the rates paid on money held in trust in the Common Fund.

Objectives

The proposed regulatory changes are the outcome of the review of the Maori Trustee and Maori Trust Office initiated in 1991. They are intended to—

  • ensure that there is clear accountability for Crown funding provided to the Māori Trustee:

  • ensure that the Māori Trustee is, and is perceived to be, independent of the Government and the Crown in exercising his or her trustee and agency duties, roles, and responsibilities:

  • ensure that the interest payable on money held in trust in the Common Fund is set in a way that takes into account appropriate fair market rates.

Alternative options

The following options have been considered:

Autonomous Crown entity

The Crown Entities Act 2004 expressly safeguards the independence of Crown entities and under the autonomous Crown entity (ACE) model, the Māori Trustee’s core roles, duties, and responsibilities as trustee and agent would remain independent of Ministerial direction. The model would apply strong accountability mechanisms. These include enabling Ministers to direct elements of the Māori Trustee’s statement of intent and making the Māori Trustee responsible to the Minister for the discharge of the Māori Trustee’s functions.

There are strong financial accountability components for an ACE and any employees would be subject to codes of integrity and conduct issued by the State Services Commissioner. Legislative amendment would be needed to ensure that the independence of the Māori Trustee is preserved.

However, transferring assets to an ACE would be a move towards greater Crown influence and control. There is an inherent conflict between acting on behalf of the Crown and acting at all times for the benefit of the beneficiaries. This risk can be limited if the ACE is able to have its independent functions recognised by statute and if it remains a separate legal entity.

Māori Trustee as board

During the course of the review of the Maori Trustee, careful consideration has been given as to whether the Māori Trustee should be an individual or a board. A board would make a range of skills and expertise available to the exercise of the functions of the Māori Trustee. The option of a board could be combined with the other organisational forms that have been considered. However, this is not a preferred option because of the high cost and complexity relative to the scope of the functions concerned.

Preferred option

Statutory body corporate included on Schedule 4 of Public Finance Act 1989

The preferred option establishes the Māori Trustee as a statutory body corporate independent from Te Puni Kōkiri and included on Schedule 4 of the Public Finance Act 1989. The Māori Trustee will be appointed by the Minister of Māori Affairs and will be able to employ staff directly and otherwise operate as a stand-alone organisation. To underline the Māori Trustee’s continuing independence, it is proposed to reflect the present legal position in a provision similar in spirit to section 10 of the Public Trust Act 2001, that requires Public Trust, in fulfilling its fiduciary obligations, to act in an independent manner, free from any direction or instruction from the Crown.

As an organisation included on Schedule 4 of the Public Finance Act 1989, certain accountability requirements under the Crown Entities Act 2004 will apply. There is the flexibility to adapt these to the nature of the organisation concerned. The Bill provides that the Māori Trustee is subject to a requirement to publish an annual report (including a statement of service performance), with exemption from provisions that are not appropriate given the Māori Trustee’s need for independence.

The Māori Trustee will not be a Crown entity and will not be subject to Ministerial direction or review.

This will provide improved accountability arrangements compared to the status quo, while also maintaining the independence of the Māori Trustee. It is, therefore, the preferred option. In developing these options, care was taken to ensure that the proposed governance and accountability arrangements are consistent with the Māori Trustee’s independence and duties, roles, and responsibilities.

There are no compliance costs for businesses.

The Maori Trustee Act 1953 requires amending to give effect to these changes, as by establishing the Māori Trustee as an independent statutory body corporate with the necessary powers to operate as a stand-alone organisation. There will be number of consequential amendments to reflect these changes.

Section 41 of the Maori Trustee Act 1953 will be amended to provide that the ongoing funding provided by the Crown will not be subject to requisition by the Minister of Finance. With the improved accountability arrangements and the proposal for a funding agreement with the Māori Trustee, there is no longer a clear rationale for retaining the power of requisition in respect of Crown funding after 1 July 2008, when the funding agreement is in place. However, the risk of reducing the accountability of the Māori Trustee as a result of amending section 41 is offset by including the Māori Trustee on Schedule 4 of the Public Finance Act 1989 and through the funding agreement. Further issues relating to the Māori Trustee’s contingent liabilities under section 41 will be considered as part of the 2008/2009 Budget process.

There will be no impact on other legislation except by way of consequential amendments.

The Maori Trustee Act 1953 and the Maori Trust Office Regulations 1954 will be amended so that there is a clear requirement that the interest payable takes into account appropriate market interest rates, while also enabling the Māori Trustee to make deductions for administrative costs. The Māori Trustee will be required to pay the interest earned by the Trustee on funds held in trust, less a deduction for administrative costs, and to review on a quarterly basis the extent to which the interest paid reflects market rates relative to funds of a similar size and subject to comparable conditions.

In the interests of fairness and consistency, it is proposed that the same approach (of review and adjustment in light of market rates) should also apply to money held on demand and to amounts less than $20. While all sums could potentially attract interest, the Māori Trustee would not be obliged to make payments on very small amounts, below a specified threshold. These are matters that are appropriately provided for in regulations and the regulation-making powers are to be amended accordingly to reflect these requirements.

Risks include reducing the income of the General Purposes Fund, which may mean that over time the Māori Trustee will have a smaller fund with which to undertake functions not funded by the Crown. This risk is outweighed by the potential risk of allowing an interest rate differential to continue. The impact of changes to interest rates is being considered in preparatory work for the establishment of the stand-alone Māori Trustee.

No impact on other legislation is anticipated.

Implementation and review

It is proposed that the legislation making the proposed amendments to the Maori Trustee Act 1953 (and any necessary consequential amendments) and changes to the Maori Trust Office Regulations 1954 take effect on and from 1 July 2008. This will allow transitional planning for the necessary organisational and system changes. Work to date has identified that significant changes to current systems, processes, and business practices will be required to be implemented over a period of 3 years.

A monitoring framework for the Māori Trustee’s new organisation will be developed by Te Puni Kōkiri. The impact of the proposed amendments will also be evaluated as part of ongoing monitoring of the Maori Trustee Act 1953 and as part of Te Puni Kōkiri’s long-term project looking at a range of land tenure issues.

Consultation

The Maori Trustee, Maori Trust Office, Treasury and State Services Commission have been consulted. The Department of the Prime Minister and Cabinet has been informed.

Approximately 49,000 letters were sent to the Maori Trustee’s stakeholders, advising them of the proposed changes, dates for consultation hui, and where to obtain further information. Letters were also sent to national Māori and iwi organisations and to the Maori Land Court. Information has been made available on Te Puni Kōkiri’s website and through the regional offices of both the Maori Trust Office and Te Puni Kōkiri. Eleven hui were held around the country, and approximately 2,000 people attended.

Forty-one written submissions were received.

There was strong support for a stand-alone organisation, provided that the Māori Trustee was funded to a level that would enable the new organisation to be sustainable in the medium- to long-term. There were a number of requests that beneficial owners have some role in the appointment of the Māori Trustee. There was general support for the proposed changes to the way in which interest rates are set.

Consultation highlighted the importance of the Māori Trustee to Māori and concerns tended to focus around any risks to the future viability of the Māori Trustee.

Transitional plans include keeping beneficial owners, iwi, and national Māori organisations informed of the Government’s decisions.

Regulatory impact statement—Māori Business Aotearoa New Zealand (MBANZ)

Executive summary

Further amendments to the Maori Trustee Act 1953 are proposed in order to better co-ordinate current initiatives to support Māori development.

The preferred option is to amend the Maori Trustee Act 1953 (to be renamed the Māori Trustee and Māori Development Act 1953) to establish an independent statutory corporation (governed by a board) with the purpose of furthering Māori economic development by utilising the potential of resources available to Māori. The working name for the corporation is Māori Business Aotearoa New Zealand (MBANZ).

The Māori Trustee will be the chair of the board of the statutory corporation. MBANZ will be responsible for a development fund, comprising funds transferred by the Māori Trustee from the General Purposes Fund provided for under the Maori Trustee Act 1953, together with a contribution from the Crown, and, potentially, contributions from other organisations. Members of the board will be appointed by the Minister of Finance and the Minister of Māori Affairs.

Adequacy statement

Te Puni Kōkiri has reviewed the regulatory impact statement and considers that it meets the adequacy criteria in terms of Cabinet Office Circular CO (07)3.

Status quo and problem

A number of agencies are involved in Māori economic and business development, including the Maori Trustee, Te Puni Kōkiri, and non-government agencies. The Maori Trustee is currently an office conferred on an employee of Te Puni Kōkiri and the staff of the Maori Trust Office are employees of Te Puni Kōkiri. The Maori Trustee is, however, legally distinct from the Crown and the Bill establishes the Māori Trustee as a stand-alone organisation.

Te Puni Kōkiri provides business-related information (or advice on where to source information and advice), referral to funded mentors, and entry into networks. The Maori Trustee provides advice and mentoring for beneficial owners of Māori land, and can fund investments for the benefit of Māori out of the Trustee’s General Purposes Fund. Other agencies work with early stage businesses by providing advice, direct mentoring, brokering and referrals, and co-payments to access advice and undertake investments.

Te Puni Kōkiri, the Maori Trustee and other agencies do work together to minimise duplication. However, the status quo means that resources available for Māori development are spread amongst a number of different initiatives. This is not considered the most effective or efficient use of these resources.

Recent consultation with Māori on proposed changes to the Maori Trustee Act 1953 indicated strong support for the Maori Trustee and led to a wider discussion about the possibility of the Māori Trustee taking a leadership role in Māori development.

Government initiative is needed to facilitate support for Māori business.

Objectives

Options have been measured against the following objectives:

  • the extent to which the option makes effective and efficient use of available resources for Māori development:

  • the extent to which the option allows the independent exercise of functions from the Crown, given the nature of its functions:

  • whether the option has robust and transparent governance and accountability arrangements:

  • the extent to which the option provides for a leadership role for the Māori Trustee.

Alternative options

The following options have been considered:

Departmental form

Setting up the new organisation within a government department, or as a new department, would provide good accountability to the Crown, but would place impractical limits on the kinds of functions that could be undertaken, for example, on lending and borrowing. In addition, a departmental form, with close government control, is not appropriate given the potential sources of funding and the nature of the functions to be undertaken.

Crown agent

An organisation set up as a Crown agent would be more flexible and be able to carry out all the necessary functions, and provide good accountability for Crown funding. However, a Crown agent would be subject to government policy and direction by Ministers, which is not appropriate for this particular organisation.

Autonomous Crown entity

This option would also be able to carry out all the necessary functions and would provide greater independence from the Crown than would a Crown agent or government department. However, an autonomous Crown entity is still subject to a higher level of control than is considered appropriate for the proposed new organisation. While it may be possible to address the independence of the organisation through legislation, it is probable that an autonomous Crown entity would be seen as a Crown or government organisation.

Charitable trust

It would also be possible to establish the new organisation as a charitable trust to be included on Schedule 2 of the Public Audit Act 2001. A charitable trust would be able to carry out all the required functions and provide flexibility and independence. Accountability mechanisms could be provided through the trust deed, with members of the trust board being appointed by Ministers. This option is the second most preferred option. A charitable trust does not, however, provide the same opportunities as the preferred option for building on the existing functions of the Maori Trustee under the Maori Trustee Act 1953 to further Māori development.

Preferred option

The preferred option will bring together specific development functions and resources of Te Puni Kōkiri, the Māori Trustee, and potentially, other organisations, into a new entity.

An independent statutory corporation will be established under the Maori Trustee Act 1953, to be renamed the Māori Trustee and Māori Development Act 1953 (the Act). The working name for the corporation is Māori Business Aotearoa New Zealand (MBANZ). The principal function of the corporation will be to further Māori economic development by utilising the potential of resources available to Māori.

The statutory corporation will be governed by a board and will be responsible for a development fund (MBANZ Fund). This fund will comprise money transferred from the General Purposes Fund (GPF) provided for under the Act, a contribution from the Crown, and, potentially, contributions from other organisations. The board will bring a range of skills and expertise to the governance of the development fund.

The statutory corporation will be a public authority for the purposes of the Income Tax Act 2007.

The chairperson of the board will be the Māori Trustee, reflecting the leadership role envisaged by Māori for the Trustee. The Māori Trustee will be appointed by the Minister of Māori Affairs under Part 1. Other members of the board will be appointed by the Minister of Finance and the Minister of Māori Affairs.

Accountability measures such as reporting requirements and the removal of board members in defined circumstances are set out in the Bill. These provisions reflect the Government’s intention to make a significant contribution to the MBANZ Fund as well as the need for wider accountability to Māori. The board will be required to commission an independent review of the statutory corporation’s effectiveness and efficiency. MBANZ will be subject to the Ombudsmen Act 1975 and the Official Information Act 1982. In addition, the statutory corporation will be included on Schedule 2 of the Public Audit Act 2001.

There are potential conflicts arising from the Māori Trustee having 2 distinct roles and sets of accountabilities. The first relates to the interests of beneficial owners; the second is in carrying out the role of the chairperson of the board of MBANZ. It is proposed to mitigate these risks by clearly identifying the responsibilities of the Māori Trustee in each of the Trustee’s roles and by the establishment of robust conflict of interest rules for both the Māori Trustee and the board as a whole.

Transparent roles, processes, and guidelines will help to provide checks that, for example, the Māori Trustee and board members declare their interests and stand aside from decisions when appropriate. They will also help the Māori Trustee ensure that the Trustee’s role as chairperson of MBANZ does not impinge on the Trustee’s need for independence as a trustee and agent.

There are no compliance costs to businesses.

Legislative amendments to the Maori Trustee Act 1953 will be required to establish the statutory corporation and the new development fund, and to transfer funds from the GPF as a contribution to the MBANZ Fund. The Government’s contribution to the MBANZ Fund will be dealt with administratively. Final decisions will be completed prior to the transfer from the GPF.

Implementation and review

An establishment board will be set up to prepare a strategic plan, including its service configuration, and an investment strategy.

The Minister of Māori Affairs and the Minister of Finance will consider the composition of the establishment board and appoint the members.

Work will be undertaken to prepare for the set up of the statutory corporation. The proposed legislative changes will take effect on 1 July 2008, at which time the statutory corporation will come into being. Te Puni Kōkiri will also develop a monitoring and evaluation framework for the statutory corporation to be in place by 1 July 2008.

The board of the statutory corporation will be required to prepare a strategic plan each year, to report annually on performance, to hold a yearly public meeting to report on performance and the board’s strategic vision for the next 3 years, to provide information requested by the Minister of Māori Affairs and the Minister of Finance, and to commission an independent review of its efficiency and effectiveness in 2013 and, after that, at 5-yearly intervals.

Consultation

The State Services Commission, the Treasury, the Ministry of Economic Development and the Maori Trustee were consulted. The Department of the Prime Minister and Cabinet has been kept informed. Governance and accountability arrangements have been clarified following feedback from departments, in particular, the State Services Commission.

Māori have been recently consulted on proposals to establish the Māori Trustee as a stand-alone organisation included on Schedule 4 of the Public Finance Act 1989, with a funding agreement with the Crown, and requiring the Māori Trustee to review interest rates paid on money held in trust, taking appropriate market rates into account. There was general support for these changes, subject to the Māori Trustee receiving adequate funding.

The consultation led to a wider discussion at hui about the importance of the Māori Trustee to Māori and about the potential for the Māori Trustee (as a stand-alone organisation) to take a leadership role in Māori development. A number of written submissions also raise similar issues and concepts. This feedback is directly relevant to proposals to bring together functions relating to Māori economic development and has led to a reassessment of available options. The preferred option was developed in order to better provide an opportunity for a leadership role for the Māori Trustee in Māori development.

Hon Parekura Horomia

Māori Trustee and Māori Development Amendment Bill

Government Bill

181—1

Contents

1 Title

2 Commencement

3 Principal Act amended

Part 1
Amendments to principal Act

4 Long Title repealed

5 Name of principal Act changed

6 This Act to be read with Te Ture Whenua Maori Act 1993

7 New headings and sections 3 to 6E substituted

Part  1
Establishment and role of Māori Trustee

Māori Trustee established

3 Māori Trustee established

Capacity, powers, and status of Māori Trustee

4 Capacity and powers of Māori Trustee

5 Independence of Māori Trustee

Provisions relating to appointment of Māori Trustee

6 Appointment of Māori Trustee

6A Continuation of appointment

6B Termination of appointment of Māori Trustee

Appointments by Māori Trustee

6C Deputy Māori Trustee

6D Other employees

Delegation

6E Delegation by Māori Trustee

8 New heading inserted

9 Māori Trustee’s Account

10 Accounts within Māori Trustee’s Account

11 New sections 26 to 26B substituted

26 Money held in Common Fund invested in Fund

26A Management fees

26B Disclosure requirements

12 New heading and section 41 substituted

Recovery from Māori Trustee

41 Minister may recover certain money paid by Crown

13 New section 52 substituted

52 Regulations

14 Section 53 repealed

15 New Part 2 inserted

Part  2
Māori Business Aotearoa New Zealand

53 Interpretation

Subpart 1—Key provisions about Māori Business Aotearoa New Zealand

Establishment, functions, and powers

54 Establishment of MBANZ

55 Functions of MBANZ

56 Powers of MBANZ

57 Management fees

Names protected

58 Protection of names

MBANZ Fund

59 MBANZ Fund established

60 Effect of agreement to transfer assets under section 59

Subpart 2—Governing body of MBANZ

Board

61 Board of MBANZ

62 Powers of board

63 Duties of members of board

Related entities and subsidiaries

64 Shares or interests in related entities

65 Limits to functions and powers of subsidiary

Subpart 3—Accountability requirements for MBANZ

66 Overview of accountability responsibilities of MBANZ

Key accountability documents

67 Strategic plan

68 Annual report and financial statements

69 Financial report

70 Annual report presented to House of Representatives

Responsible Ministers’ right to request information

71 Responsible Ministers may request information

Information to be publicly available

72 Public information on MBANZ performance

Review

73 Requirement for review of performance of MBANZ

74 Substance of review

16 New Schedule substituted

Part 2
Transitional provisions and consequential amendments

Transitional matters

17 Interpretation

18 New Māori Trustee succeeds to existing undertaking

19 Dissolution of Maori Trust Office

20 Contracts and other instruments

21 Status of existing securities

22 Continuation of proceedings

23 Effect of Act

24 Registers

25 Transfer of employees

26 Protection of employment conditions

27 Continuity of employment

28 No compensation for redundancy

29 Membership of Government Superannuation Fund

Consequential and other amendments

30 Enactments amended

Schedule 1
New Schedule of Māori Trustee and Māori Development Act 1953

Schedule 2
Consequential amendments to other Acts

The Parliament of New Zealand enacts as follows:

1 Title

  • This Act is the Māori Trustee and Māori Development Amendment Act 2007.

2 Commencement

  • This Act comes into force on 1 July 2008.

3 Principal Act amended

  • This Act amends the Act that was previously called the Maori Trustee Act 1953.

Part 1
Amendments to principal Act

4 Long Title repealed

  • The Long Title is repealed.

5 Name of principal Act changed

  • (1) On and from 1 July 2008,—

    • (a) the Maori Trustee Act 1953 is called the Māori Trustee and Māori Development Act 1953:

    • (b) every reference in any enactment and in any document to the Maori Trustee Act 1953 must, unless the context otherwise requires, be read as a reference to the Māori Trustee and Māori Development Act 1953.

    (2) The heading to section 1 is amended by omitting “Short”.

    (3) Section 1(1) is repealed and the following subsection substituted:

    • “(1) This Act is the Māori Trustee and Māori Development Act 1953.”

6 This Act to be read with Te Ture Whenua Maori Act 1993

  • (1) Section 2 is amended by omitting the heading and substituting the following heading: “Interpretation”.

    (2) Section 2 is amended by adding the following subsections:

    • “(3) Without limiting subsection (1), in this Act, unless the context otherwise requires,—

      “Appropriation Account means the account provided for under section 23

      “Common Fund means the separate fund authorised by section 23(1)(b)

      “General Purposes Fund means the separate fund authorised by section 23(1)(c)

      “Māori Trustee—

      • “(a) means the Māori Trustee established by section 3; and

      • “(b) includes, as the context requires, the Māori Trustee who—

        • “(i) is appointed under section 6; or

        • “(ii) continues to hold office under section 6A.”

7 New headings and sections 3 to 6E substituted

  • The headings above sections 3 and 4 and sections 3 to 6 are repealed and the following headings and sections substituted:

    “Part  1
    “Establishment and role of Māori Trustee

    “Māori Trustee established

    “3 Māori Trustee established

    • “(1) This section establishes the Māori Trustee.

      “(2) The Māori Trustee is a corporation sole with perpetual succession and a seal of office.

    “Capacity, powers, and status of Māori Trustee

    “4 Capacity and powers of Māori Trustee

    • “(1) For the purpose of exercising the powers and performing the functions and duties of the Māori Trustee conferred by or under this Part or any other enactment, the Māori Trustee has—

      • “(a) full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction; and

      • “(b) for the purpose of paragraph (a), full rights, powers, and privileges.

      “(2) Subsection (1) applies subject to—

      • “(a) the provisions of this Act and any other enactment; and

      • “(b) the general law.

    “5 Independence of Māori Trustee

    • In exercising the powers and performing the functions and duties of the Māori Trustee in his or her fiduciary capacity under this Part or any other enactment, the Māori Trustee must act independently, free from any direction or instruction from the Crown.

    “Provisions relating to appointment of Māori Trustee

    “6 Appointment of Māori Trustee

    • “(1) The Māori Trustee is appointed by the Minister.

      “(2) An appointment made under subsection (1) must be made by written notice to the person appointed.

      “(3) The notice must—

      • “(a) state the date on which the appointment takes effect, which must not be earlier than the date on which the notice is received; and

      • “(b) state the period for which the appointment is made, which must not exceed a period of 5 years; and

      • “(c) be published by the Minister in the Gazette as soon as practicable after being given.

      “(4) The person appointed under this section—

      • “(a) may be reappointed; and

      • “(b) continues in office, despite the expiry of his or her term of office, until—

        • “(i) the person is reappointed; or

        • “(ii) the person’s successor is appointed; or

        • “(iii) the person ceases to be the Māori Trustee in a circumstance provided for in section 6B.

    “6A Continuation of appointment

    • Despite section 6, the person holding office as the Maori Trustee immediately before 1 July 2008 is the Māori Trustee within the meaning of this Act and may hold that office for a period of up to 5 years from 1 July 2008, as may be determined by the Minister and notified in accordance with section 6(3).

    “6B Termination of appointment of Māori Trustee

    • “(1) The Māori Trustee ceases to hold office if he or she—

      • “(a) resigns from office by written notice to the Minister; or

      • “(b) is removed or suspended from office under subsection (2); or

      • “(c) ceases to hold office as the Māori Trustee under this Part.

      “(2) The Minister may, if the Minister is satisfied that there is just cause, remove or suspend the Māori Trustee from office by written notice to the Māori Trustee, stating—

      • “(a) the date on which the removal or suspension takes effect, which must not be earlier than the date on which the notice is received; and

      • “(b) the reasons for the removal or suspension; and

      • “(c) in the case of a suspension from office,—

        • “(i) the date on which the person’s appointment will be reinstated; or

        • “(ii) the event upon which his or her reinstatement depends.

      “(3) The Minister must notify the removal or suspension in the Gazette as soon as practicable after notice is given to the Māori Trustee.

      “(4) The Māori Trustee is not entitled to receive compensation or other payment or benefit relating to his or her ceasing, for any reason, to hold office as the Māori Trustee.

      “(5) In subsection (2), just cause means—

      • “(a) undischarged bankruptcy, misconduct, or neglect of duty; or

      • “(b) inability to perform the functions and duties of the Māori Trustee.

    “Appointments by Māori Trustee

    “6C Deputy Māori Trustee

    • “(1) The Māori Trustee may appoint a Deputy Māori Trustee to be an employee of the Māori Trustee.

      “(2) In the case of a vacancy in the office of the Māori Trustee, or if the Māori Trustee is unable to perform the functions and duties of the Māori Trustee under this Part or any enactment (other than Part 2), or is for any reason prevented from doing so, the Deputy Māori Trustee (if any) has and may exercise the powers and perform the functions and duties of the Māori Trustee for as long as the vacancy or absence continues.

      “(3) The powers exercised, and functions and duties performed by the Deputy Māori Trustee under subsection (2) may not be questioned in any proceeding on the ground that the occasion for the Deputy Māori Trustee to act had not arisen or had ceased.

    “6D Other employees

    • “(1) The Māori Trustee may appoint the employees that the Māori Trustee considers appropriate to enable the Māori Trustee to exercise the powers and perform the functions and duties of office under this Act effectively and efficiently.

      “(2) The Governor-General may, by Order in Council, provide that the Māori Trustee must not, in relation to any or all employees (including the Deputy Māori Trustee, if any), agree to terms and conditions of employment in a collective employment agreement, or an amendment to those terms and conditions, without—

      • “(a) consulting the State Services Commissioner; and

      • “(b) having regard to the recommendations that the State Services Commissioner may make to the Māori Trustee within a reasonable time of being consulted.

    “Delegation

    “6E Delegation by Māori Trustee

    • “(1) The Māori Trustee may delegate to the Deputy Māori Trustee (if any) any of the powers, functions, or duties conferred on the Māori Trustee by or under this Act or any other enactment.

      “(2) Subject to any general or express directions of the Māori Trustee, the Deputy Māori Trustee has, and may exercise all the powers, or perform the functions and duties delegated by the Māori Trustee in the same manner and with the same effect as if they had been conferred on the Deputy Māori Trustee directly by or under this Act or other enactment.

      “(3) A delegation under this section—

      • “(a) must be in writing; and

      • “(b) is revocable in writing at any time; and

      • “(c) may be made subject to any restrictions or conditions that the Māori Trustee thinks fit; and

      • “(d) does not prevent the exercise of a power or performance of a function or duty by the Māori Trustee; but

      • “(e) does not include a power of delegation.

      “(4) In the absence of proof to the contrary, the Deputy Māori Trustee, when purporting to act under a delegation, is presumed to be acting in accordance with the terms of the delegation.

      “(5) Powers exercised, functions or duties performed, and decisions made by the Deputy Māori Trustee, acting as the delegate of the Māori Trustee, may not be questioned in any proceeding on the ground that the occasion for the Deputy Māori Trustee to act had not arisen or had ceased.”

8 New heading inserted

  • The following heading is inserted above section 7: “Further provisions relating to powers and functions of Māori Trustee”.

9 Māori Trustee’s Account

  • Section 17 is amended by adding the following subsection:

    • “(4) Money may be paid out of the Appropriation Account in the Māori Trustee’s Account for the purposes that are agreed to from time to time between the Māori Trustee and the Crown.”

10 Accounts within Māori Trustee’s Account

  • (1) Section 23(1) is amended by adding the following paragraph:

    • “(h) the Appropriation Account.”

    (2) Section 23 is amended by inserting the following subsection after subsection (5):

    • “(5A) All money received by way of Crown appropriation must be credited to the Appropriation Account in the Māori Trustee’s Account.”

11 New sections 26 to 26B substituted

  • Section 26 is repealed and the following sections are substituted:

    “26 Money held in Common Fund invested in Fund

    • “(1) All money held in trust in the Common Fund is invested in that fund.

      “(2) Unless an exception is provided for in regulations made under section 52(a)(i), the Māori Trustee must pay interest at least annually on that money, in accordance with subsection (3) and as provided for in regulations made under section 52(a)(ii).

      “(3) The interest payable under subsection (2) must be calculated in accordance with the following formula:

      a − b = c

      where—

      a
      is the total amount of money received by the Māori Trustee as income from the money held by the Māori Trustee in trust in the Common Fund
      b
      is the total amount of the management fees that the Māori Trustee is entitled to charge or retain under section 26A
      c
      is the amount of interest that must be paid annually under subsection (1)(b), which must be apportioned in accordance with regulations made under section 52(b).

      “(4) The Māori Trustee must review, on a quarterly basis, the extent to which the interest payable under subsection (1)(b) is commensurate with fair market interest paid for the relevant quarter, relative to funds that are—

      • “(a) comparable in size to those held in trust in the Common Fund; and

      • “(b) subject to conditions comparable to the conditions applying to the Common Fund.

      “(5) Interest on investments in the Common Fund must be paid out of the General Purposes Fund.

    “26A Management fees

    • The Māori Trustee may charge or retain a management fee, calculated in accordance with regulations made under section 52(c), for the management of money held in trust in the Common Fund.

    “26B Disclosure requirements

    • “(1) The Māori Trustee must report to account holders on the matters and in the manner prescribed by regulations made under section 52(d), including—

      • “(a) the amount of interest payable in respect of each account; and

      • “(b) the management fee charged or retained under section 26A; and

      • “(c) the net amount of interest to be paid; and

      • “(d) such other matters that the Māori Trustee considers necessary or desirable.

      “(2) The annual report of the Māori Trustee must include a report on the total amount of interest, less management fees charged or retained, paid on money held in trust in the Common Fund.”

12 New heading and section 41 substituted

  • Section 41 is repealed and the following heading and section are substituted:

    “Recovery from Māori Trustee

    “41 Minister may recover certain money paid by Crown

    • The Māori Trustee must, out of the General Purposes Fund, pay into a Crown Bank Account any sum that the Minister of Finance may, by written notice, require to be paid in respect of money paid to the Maori Trust Office for salaries and other expenses of that Office incurred before the dissolution of that Office on 1 July 2008.”

13 New section 52 substituted

  • Section 52 is repealed and the following section substituted:

    “52 Regulations

    • The Governor-General may, by Order in Council, on the recommendation of the Minister of Māori Affairs, make regulations—

      • “(a) for the purpose of section 26(2),—

        • “(i) defining any special circumstances or cases in which the Māori Trustee, though required to credit interest to an account, is not required to pay interest under that section, including, without limitation, prescribing the sum of money below which the Maori Trustee is not required to make an interest payment:

        • “(ii) setting out how and to whom interest is to be paid:

      • “(b) for the purpose of section 26(3), providing for the apportionment of interest:

      • “(c) for the purpose of section 26A, prescribing the basis on which the management fee must be calculated and charged or retained:

      • “(d) for the purpose of section 26B(1), prescribing how, when, and to whom, in each financial year, the Māori Trustee must make the required disclosures:

      • “(e) for other purposes expressly provided for in this Part:

      • “(f) prescribing any other matters contemplated by this Part or necessary for its administration or to give it full effect.”

14 Section 53 repealed

  • Section 53 is repealed.

15 New Part 2 inserted

  • The following Part is inserted after section 52:

    “Part  2
    “Māori Business Aotearoa New Zealand

    “53 Interpretation

    • In this Part, unless the context otherwise requires,—

      “board means the governing body of MBANZ whose members are appointed under section 61

      “committee means a committee appointed under clause 18 of the Schedule

      “financial year means a period of 12 months beginning on 1 July and ending on 30 June

      “Māori Business Aotearoa New Zealand and MBANZ mean the statutory corporation established by section 54

      “MBANZ Fund means the fund established under section 59

      “member means a member of the board

      “responsible Ministers means the Minister of Finance and the Minister of Māori Affairs

      “subsidiary means a subsidiary of MBANZ within the meaning of section 2(1) of the Financial Reporting Act 1993.

    “Subpart 1—Key provisions about Māori Business Aotearoa New Zealand

    “Establishment, functions, and powers

    “54 Establishment of MBANZ

    • “(1) This section establishes Māori Business Aotearoa New Zealand (MBANZ).

      “(2) MBANZ is a body corporate with perpetual succession.

      “(3) The governing body of MBANZ is the board whose members are appointed under section 61.

    “55 Functions of MBANZ

    • “(1) The principal function of MBANZ is to administer the MBANZ Fund so as to further the economic development of Māori by utilising the potential of resources available to Māori.

      “(2) In carrying out its principal function, MBANZ may—

      • “(a) provide business advisory and mentoring services for Māori starting up new businesses or consolidating and developing existing businesses:

      • “(b) identify opportunities with a significant potential for the economic development of Māori:

      • “(c) make payments and grant loans to assist Māori to start up new businesses, or to consolidate and develop existing businesses as a means of contributing to the success of those businesses:

      • “(d) undertake research, monitoring, and evaluation to ensure that the services provided by MBANZ meet, and continue to meet, the business needs of Māori:

      • “(e) provide other services that are identified by MBANZ as being likely to contribute to MBANZ fulfilling its principal function.

    “56 Powers of MBANZ

    • “(1) For the purpose of performing its functions under this Part, MBANZ—

      • “(a) has full capacity to carry out or undertake any business or activity, do any act, or enter into any transaction; and

      • “(b) for the purposes of paragraph (a), has full rights, powers, and privileges.

      “(2) Subsection (1) applies subject to—

      • “(a) the provisions of this Act and any other enactment; and

      • “(b) the general law.

    “57 Management fees

    • For the purpose of performing its functions under this Part, MBANZ may charge or retain a reasonable fee or other remuneration for its services, including, but not limited to, such matters as—

      • “(a) the provision of mentoring services to Māori in respect of existing businesses or businesses they propose to start up:

      • “(b) the preparation of research reports for Māori in relation to existing or proposed businesses:

      • “(c) the processing of applications for payments or loans that may be granted or made under section 55(2)(c).

    “Names protected

    “58 Protection of names

    • “(1) No person may be incorporated or registered under any other enactment or in any other manner using—

      • “(a) the names Māori Business Aotearoa New Zealand or MBANZ; or

      • “(b) any other name that so resembles either of those names as to be likely to mislead a person.

      “(2) No person other than MBANZ may, either alone or with another person, trade or carry on business—

      • “(a) under a name listed in subsection (1); or

      • “(b) under a name, knowing that it so resembles a name listed in subsection (1) as to be likely to mislead a person.

      “(3) A person who breaches subsection (2) commits an offence and is liable, on summary conviction, to a fine not exceeding $2,500.

    “MBANZ Fund

    “59 MBANZ Fund established

    • “(1) On and from 1 July 2008, the MBANZ Fund is established.

      “(2) As soon as practicable after 1 July 2008, the Māori Trustee must transfer, as a contribution to the MBANZ Fund, the sum of $35,000,000 to that fund from the General Purposes Fund.

      “(3) Subsection (2) is complied with if the Māori Trustee transfers, as may be agreed between the Māori Trustee and MBANZ, a proportion of the sum of $35,000,000 in cash and a proportion of that sum as other assets.

      “(4) In relation to other assets that may be transferred under subsection (3), the Māori Trustee and MBANZ must agree as to what assets or class of assets are to be transferred and their fair market value as independently valued.

      “(5) If an agreement is not reached under subsections (3) and (4) on or before 1 August 2008, the responsible Ministers must direct the Māori Trustee and MBANZ as to—

      • “(a) the proportion of cash and assets to be transferred; and

      • “(b) the assets or class of assets to be transferred and their fair market value.

      “(6) For the purposes of this section and section 60, assets means any assets of the General Purposes Fund owned, controlled, or held, wholly or in part, by the Maori Trustee immediately before 1 July 2008.

    “60 Effect of agreement to transfer assets under section 59

    • “(1) An asset may be transferred to MBANZ by the Māori Trustee, whether or not any enactment or agreement relating to the asset permits a transfer or requires any consent to the transfer.

      “(2) A transfer under section 59 does not entitle any person to terminate or in any way affect the rights of the Māori Trustee or MBANZ under any enactment or agreement relating to the asset.

    “Subpart 2—Governing body of MBANZ

    “Board

    “61 Board of MBANZ

    • “(1) The board of MBANZ must consist of not more than 7 members, including the chairperson, appointed jointly by the responsible Ministers as soon as is reasonably practicable after 1 July 2008.

      “(2) The Māori Trustee is the chairperson of the board.

      “(3) In appointing the members of the board, the responsible Ministers may name 1 of the members to be the deputy chairperson of the board.

    “62 Powers of board

    • “(1) The board has all the powers necessary for performing its functions and duties under this Act.

      “(2) The Schedule applies to the board, its members, and the administration of MBANZ.

    “63 Duties of members of board

    • A member of the board, when acting as a member, and the board acting collectively, must—

      • “(a) act in good faith, honestly, and with integrity; and

      • “(b) not contravene, or cause MBANZ to contravene, this Part; and

      • “(c) act with the care, diligence, and skill that a reasonable board member would exercise in the same circumstances, taking into account, without limitation,—

        • “(i) the nature of the activities of MBANZ; and

        • “(ii) the nature of the action or decision taken by the board member; and

        • “(iii) the position of the board member and the nature of the responsibilities undertaken by him or her; and

      • “(d) act in accordance with clauses 5 to 11 of the Schedule (which governs members’ conflicts of interest); and

      • “(e) not act as a representative of, or promote the views of, any particular person, organisation, business, or political party; and

      • “(f) ensure that MBANZ—

        • “(i) acts within its statutory functions; and

        • “(ii) performs its functions and conducts its activities effectively and efficiently by—

          • “(A) prudently managing the assets and liabilities of MBANZ:

          • “(B) maintaining the long-term financial viability of MBANZ:

          • “(C) covering the annual costs of MBANZ from the annual income.

    “Related entities and subsidiaries

    “64 Shares or interests in related entities

    • For the purpose of performing its functions under this Part, MBANZ may—

      • “(a) form, or hold any shares or interests in, any body corporate or partnership, joint venture, or other association of persons; or

      • “(b) settle, or be or appoint a trustee of, a trust.

    “65 Limits to functions and powers of subsidiary

    • “(1) MBANZ and any subsidiary of MBANZ must ensure that the subsidiary—

      • “(a) does not carry on or undertake any business or activity, do any act, or enter into any transaction that MBANZ itself has no capacity or power to carry on, undertake, do, or enter into; and

      • “(b) exercises its powers only for the purpose of performing, or assisting MBANZ to perform, its functions; and

      • “(c) in carrying on or undertaking a business or activity, doing an act, or entering into a transaction, is subject to the same obligations and restrictions that would apply to MBANZ in relation to that matter; and

      • “(d) does not authorise remuneration or allowances for its directors that could not be authorised for the members of the board of MBANZ; and

      • “(e) complies with the terms of the strategic plan of MBANZ; and

      • “(f) conducts its affairs in accordance with this Part, any other enactment, and with the general law.

      “(2) Clause 30 of the Schedule applies to the directors of a subsidiary.

    “Subpart 3—Accountability requirements for MBANZ

    “66 Overview of accountability responsibilities of MBANZ

    • “(1) The board must prepare the following documents relevant to the accountability of MBANZ:

      • “(a) a strategic plan in accordance with section 67; and

      • “(b) the annual report and financial statements in accordance with section 68.

      “(2) As part of its accountability responsibilities, the board must also—

      • “(a) supply information to the responsible Ministers in accordance with section 71; and

      • “(b) provide an opportunity for members of the public to consider the documents prepared under subsection (1) and to discuss them with the board of MBANZ, as required by section 72; and

      • “(c) commission an independent review of the performance of MBANZ at 5-yearly intervals in accordance with section 73.

    “Key accountability documents

    “67 Strategic plan

    • The board must, not later than the end of each financial year, prepare and approve, by resolution, a strategic plan that must specify, for the next 3 financial years, the following matters:

      • “(a) the strategic vision of MBANZ, including details of how the Board will further the principal function of MBANZ; and

      • “(b) performance targets for MBANZ; and

      • “(c) how the performance of the board will be measured in relation to its functions; and

      • “(d) the nature and scope of the activities to be undertaken by the board, including any investments that are proposed; and

      • “(e) the ratio of the capital of the MBANZ Fund to its total assets, with definitions of the terms ‘capital’ and ‘total assets’; and

      • “(f) the accounting practices followed by the board; and

      • “(g) procedures that the board follows before it enters into any material contract or agreement or subscribes for, purchases, or otherwise acquires shares in any company or organisation; and

      • “(h) details of the board’s budget for the relevant period, setting out its estimated income and expenditure; and

      • “(i) details of proposed payments, applications, or appropriations of income or capital for, or towards, 1 or more of the board’s functions.

    “68 Annual report and financial statements

    • “(1) In respect of each financial year, the board must prepare—

      • “(a) a report dealing with the affairs of MBANZ and any subsidiaries of MBANZ; and

      • “(b) the financial statements in relation to MBANZ.

      “(2) The report required under subsection (1)(a) must include—

      • “(a) an assessment of—

        • “(i) how MBANZ has performed in furthering its principal and other functions; and

        • “(ii) the progress made by MBANZ in relation to the strategic plan for that financial year; and

      • “(b) statements of—

        • “(i) the income and expenditure of MBANZ for the financial year; and

        • “(ii) the assets and liabilities of MBANZ at the end of the financial year; and

        • “(iii) the value of remuneration and other benefits received during the financial year by each member in respect of his or her appointment to the board and by each committee member (if any) who is not also a member of the board; and

      • “(c) details of any indemnity provided, or insurance cover effected, by MBANZ in respect of any member or committee member, office holder, or employee in the financial year.

      “(3) The financial statements required under subsection (1)(b) must—

      • “(a) comply with generally accepted accounting practice; and

      • “(b) include any other information or explanations needed to fairly reflect the financial operations and financial position of MBANZ; and

      • “(c) include the forecast financial statements prepared at the start of the financial year, for comparison with the actual financial statements.

    “69 Financial report

    • “(1) Not later than 90 days after the end of each financial year, the board must prepare and send to the Auditor-General a financial report—

      • “(a) containing the financial statements required by section 68(1)(b); and

      • “(b) signed and dated by the chairperson on behalf of the board.

      “(2) The Auditor-General must, within 30 days of receiving the financial report, return it to MBANZ, together with the audit report.

    “70 Annual report presented to House of Representatives

    • “(1) The board must, as soon as is reasonably practicable after receiving the financial report and audit report from the Auditor-General, forward the annual report to the responsible Ministers.

      “(2) The responsible Ministers must, as soon as is reasonably practicable, present the annual report to the House of Representatives.

    “Responsible Ministers’ right to request information

    “71 Responsible Ministers may request information

    • “(1) The board must supply to the responsible Ministers any information relating to the operations and performance of MBANZ that those Ministers may reasonably request.

      “(2) However, a request for information under subsection (1) may be declined by the board if—

      • “(a) the withholding of the information is necessary to protect the privacy of a person (whether or not a natural person or a deceased person), but only if that reason is not outweighed by the need of the responsible Ministers to have that information in order to discharge their ministerial duties; or

      • “(b) the supply of the information would limit the ability of MBANZ, the board or its members, or employees of MBANZ to act judicially or perform the functions of MBANZ in relation to a particular matter.

      “(3) Information cannot be withheld—

      • “(a) other than for the reasons set out in subsection (2); or

      • “(b) if it could not properly be withheld by a body subject to the Official Information Act 1982.

    “Information to be publicly available

    “72 Public information on MBANZ performance

    • “(1) The board must make its annual report and financial statements publicly available as soon as is reasonably practicable after the annual report has been presented to the House of Representatives under section 70(2).

      “(2) The information referred to in subsection (1) must be available for inspection at the office of MBANZ and may be made available on a website maintained by MBANZ.

      “(3) Not later than 6 months after the presentation of the annual report to the House of Representatives under section 70(2), the board must, in each year (except in 2008), convene a public meeting to report on,—

      • “(a) in relation to the preceding financial year,—

        • “(i) the operation of MBANZ; and

        • “(ii) how MBANZ has performed in furthering its principal function; and

        • “(iii) the financial statements of MBANZ; and

      • “(b) the board’s strategic vision for MBANZ for the next 3 financial years.

      “(4) The board must—

      • “(a) determine the date, time, and place for the public meeting required by subsection (3); and

      • “(b) give not less than 14 days’ public notice of that meeting by any means that it considers appropriate, as by advertising—

        • “(i) in major newspapers circulating in metropolitan areas in New Zealand:

        • “(ii) by any other means, including electronic media.

    “Review

    “73 Requirement for review of performance of MBANZ

    • “(1) The board must commission an independent review of the performance of MBANZ in accordance with the terms of reference prepared by the board and approved by the responsible Ministers.

      “(2) In the case of the first review,—

      • “(a) it must commence not later than 31 July 2013; and

      • “(b) it must relate to the period from the date of the establishment of MBANZ to 30 June 2013; and

      • “(c) the board must provide a report to the responsible Ministers not later than 1 December 2013.

      “(3) Further reviews must be commissioned by 31 July in every fifth year after 2013, with a report provided to the responsible Ministers not later than 1 December in each case.

      “(4) To avoid doubt, a review must not be undertaken by any board member or any person who held office as a board member, or who was an employee of MBANZ during the period of the review.

    “74 Substance of review

    • Reviews required by section 73 must—

      • “(a) assess the performance of MBANZ against its statutory functions; and

      • “(b) assess whether MBANZ is operating efficiently and effectively; and

      • “(c) identify any changes that are or may be required to improve the operation and performance of MBANZ.”

16 New Schedule substituted

  • The Schedule is repealed and the Schedule set out in Schedule 1 of this Act is substituted.

Part 2
Transitional provisions and consequential amendments

Transitional matters

17 Interpretation

  • In this section and sections 18 to 29, unless the context otherwise requires,—

    document has the meaning given to it by section 4(1) of the Evidence Act 2006

    existing undertaking—

    • (a) means—

      • (i) all property and estates administered, held, managed, or controlled by the Maori Trustee or the Maori Trust Office before 1 July 2008, including the funds and accounts within the Māori Trustee’s Account, as provided for in section 23, before 1 July 2008; and

      • (ii) all rights and liabilities of the Maori Trustee and the Maori Trust Office before 1 July 2008; and

    • (b) includes any reserves of the Maori Trustee or Maori Trust Office in existence before 1 July 2008

    fiduciary rights and liabilities includes all rights, capacities, authorities, discretions, duties, and liabilities of the Maori Trustee as a fiduciary

    liabilities means liabilities, debts, charges, duties, and obligations (whether present or future, actual or contingent, or payable or to be observed or performed in New Zealand or elsewhere)

    Maori Trust Office has the meaning it had immediately before 1 July 2008

    new Māori Trustee means the office established by section 3 of the principal Act

    old Maori Trustee means the Maori Trustee within the meaning of the principal Act immediately before 1 July 2008.

18 New Māori Trustee succeeds to existing undertaking

  • On and from 1 July 2008, the new Māori Trustee succeeds to—

    • (a) the existing undertaking, which is binding on the new Māori Trustee; and

    • (b) the fiduciary rights and liabilities, which bind the new Māori Trustee.

19 Dissolution of Maori Trust Office

  • On and from 1 July 2008, the Maori Trust Office is dissolved.

20 Contracts and other instruments

  • (1) A reference (express or implied) to the old Maori Trustee or the Maori Trust Office in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on 1 July 2008 must be read as a reference to the new Māori Trustee.

    (2) A reference (express or implied) to an officer of the Maori Trust Office in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on 1 July 2008 must be read as a reference to the corresponding employee of the new Māori Trustee, or if there is no corresponding employee, to another appropriate employee of the new Māori Trustee.

    (3) Contracts, agreements, conveyances, deeds, leases, licences, and other instruments, undertakings, and notices (whether in writing or not), entered into by, made with, given to or by, or addressed to the old Maori Trustee or the Maori Trust Office (whether alone or with another person) before 1 July 2008 and having effect immediately before that date (contracts and other instruments) are subject to subsection (4).

    (4) The contracts and other instruments referred to in subsection (3) are binding on, and enforceable by, against, or in favour of, the new Māori Trustee as if the new Māori Trustee, rather than the old Maori Trustee, the Maori Trust Office, or the chief executive of Te Puni Kōkiri had been the person or entity by whom they were entered into, with whom they were made, or to or by whom they were given or addressed.

21 Status of existing securities

  • (1) A security held by the old Maori Trustee or the Maori Trust Office as security for a debt or other liability to the old Maori Trustee or the Maori Trust Office incurred before 1 July 2008—

    • (a) is available to the new Māori Trustee as security for the discharge of that debt or liability; and

    • (b) if the security extends to future or prospective debts or liabilities, is available as security for the discharge of debts or liabilities to the new Māori Trustee incurred on or after 1 July 2008.

    (2) The new Māori Trustee is entitled to the same rights and priorities, and is subject to the same liabilities, in relation to the security as the old Maori Trustee or the Maori Trust Office would be if this Act had not been passed.

22 Continuation of proceedings

  • (1) An action, arbitration, proceeding, or cause of action that was pending or that existed by, against, or in favour of the old Maori Trustee or the Maori Trust Office, or to which the old Maori Trustee or the Maori Trust Office was a party, before 1 July 2008 may be continued and enforced by, against, or in favour of the new Māori Trustee.

    (2) It is not necessary to amend a pleading, writ, or other document to continue the action, arbitration, proceeding, or other cause of action.

23 Effect of Act

  • (1) Nothing done or authorised by this Act—

    • (a) places the old Maori Trustee, the Maori Trust Office, the new Māori Trustee, or any other person in breach of contract or confidence, or makes any of them liable for a civil wrong; or

    • (b) entitles a person to terminate or cancel a contract or arrangement, or to accelerate the performance of an obligation, or to impose a penalty or increased charge; or

    • (c) places the old Maori Trustee, the Maori Trust Office, the new Māori Trustee, or any other person in breach of an enactment, a rule of law, or a provision of a contract that prohibits, restricts, or regulates the assignment or transfer of property or the disclosure of information; or

    • (d) releases a surety from an obligation; or

    • (e) invalidates or discharges a contract or surety.

    (2) A document, matter, or thing that would have been admissible in evidence for or against the old Maori Trustee or the Maori Trust Office is, on and after 1 July 2008, admissible in evidence for or against the new Māori Trustee.

24 Registers

  • (1) A Registrar of Deeds, the Registrar-General of Land, or any other person charged with keeping books or registers is not required to change the name of the old Maori Trustee or the Maori Trust Office to the new Māori Trustee in the books or registers, or in a document, solely because of the provisions of this Act.

    (2) If the new Māori Trustee presents an instrument referred to in subsection (3) to a registrar or other person, the presentation of that instrument by the new Māori Trustee is, in the absence of proof to the contrary, sufficient evidence that the property is vested in the new Māori Trustee.

    (3) For the purposes of this section, the instrument need not be an instrument of transfer, but must—

    • (a) be executed, or purport to be executed, by the new Māori Trustee; and

    • (b) relate to property held by the old Maori Trustee or the Maori Trust Office immediately before 1 July 2008; and

    • (c) be accompanied by a certificate by the new Māori Trustee that the property became vested in the new Māori Trustee by virtue of the provisions of this Act.

25 Transfer of employees

  • (1) On and from 1 July 2008, every person employed in the Maori Trust Office immediately before that date ceases to be employed in the Maori Trust Office and becomes an employee of the new Māori Trustee (transferred employee).

    (2) However, subsection (1) does not apply to the old Maori Trustee in his capacity as the general manager of the Maori Trust Office immediately before 1 July 2008 and the old Maori Trustee is not entitled to compensation or other payment or benefit relating to his ceasing to be the general manager of the Maori Trust Office.

26 Protection of employment conditions

  • (1) In the case of a transferred employee who, immediately before 1 July 2008, is employed on an individual employment agreement, the transferred employee must be employed by the new Māori Trustee on terms and conditions no less favourable than those applying to that employee immediately before 1 July 2008.

    (2) Transferred employees who, immediately before 1 July 2008, are employed under a collective employment agreement are, on and after 1 July 2008, employed by the new Māori Trustee on a collective employment agreement with terms and conditions no less favourable than those on which those employees were employed immediately before 1 July 2008.

    (3) Subsections (1) and (2)—

    • (a) continue to apply to the terms and conditions of employment of a transferred employee until those terms and conditions are varied by agreement between the transferred employee (or his or her representative) and the new Māori Trustee; but

    • (b) do not apply to a transferred employee who receives any subsequent appointment with the new Māori Trustee.

27 Continuity of employment

  • For the purposes of every enactment, law, contract, and agreement relating to the employment of a transferred employee,—

    • (a) the contract of employment of that person applying immediately before 1 July 2008 in respect of that person’s employment in the Maori Trust Office is to be treated as having been unbroken; and

    • (b) a reference to the chief executive of Te Puni Kōkiri in the contract of employment of a transferred employee must be read as a reference to the new Māori Trustee; and

    • (c) the person’s period of service in the Maori Trust Office is to be treated as a period of service with the new Māori Trustee under this Act.

28 No compensation for redundancy

  • A transferred employee is not entitled to compensation for redundancy by reason only of the person ceasing to be an employee in the Maori Trust Office.

29 Membership of Government Superannuation Fund

  • (1) If a transferred employee was a contributor to the Government Superannuation Fund under the Government Superannuation Fund Act 1956 immediately before 1 July 2008,—

    • (a) that person is to be regarded, for the purposes of the Government Superannuation Fund Act 1956, as being employed in the Government service for so long as the person continues to be employed by the new Māori Trustee under Part 1 of the principal Act; and

    • (b) the Government Superannuation Fund Act 1956 is deemed to apply to the person in all respects as if the person’s service with the Government service were continuous.

    (2) For the purposes of this section, subsection (1) applies to the new Māori Trustee as if the new Māori Trustee were a transferred employee.

Consequential and other amendments

30 Enactments amended

  • (1) The enactments listed in Schedule 2 are amended in the manner set out in that schedule.

    (2) On and from 1 July 2008, except as expressly provided or unless the context otherwise requires, every reference in any enactment or document to—

    • (a) the Maori Trustee Act 1953 must be read as a reference to the Māori Trustee and Māori Development Act 1953; and

    • (b) the Maori Trustee must be read as a reference to the Māori Trustee, as defined in section 2(3) of the principal Act; and

    • (c) the Maori Trust Office must be read as a reference to the Māori Trustee, as defined in section 2(3) of the principal Act.

Schedule 1
New Schedule of Māori Trustee and Māori Development Act 1953

s 16

Schedule
Operation of board of MBANZ

ss 62, 63, 65

Appointment of members of board

1 Criteria for appointment

  • The criteria that must be taken into account for the governance experience and key competencies required for the board as a whole include, but are not limited to,—

    • Governance experience

    • (a) practical or professional commercial or business experience:

    • (b) investment or banking experience:

    • Key competencies

    • (c) understanding of the issues relevant to Māori economic development:

    • (d) expertise and experience in the management of the Māori asset base:

    • (e) entrepreneurial expertise and experience:

    • (f) competency in te reo Māori and knowledge of tikanga Māori.

2 Qualification for appointment to board

  • (1) A natural person who is not disqualified under subclause (2) may be appointed to be a member of the board.

    (2) The following persons are disqualified from being a member:

    • (a) a person who is an undischarged bankrupt:

    • (b) a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under the Companies Act 1993, the Securities Act 1978, the Securities Markets Act 1988, or the Takeovers Act 1993:

    • (c) a person who is subject to a property order made under section 10, 11, 12, 30, or 31 of the Protection of Personal and Property Rights Act 1988, or whose property is managed by a trustee corporation under section 32 of that Act:

    • (d) a person who has been convicted of an offence punishable by imprisonment for a term of 2 years or more, or who has been sentenced to imprisonment for any other offence, unless that person has obtained a pardon or served the sentence or otherwise suffered the penalty imposed on the person:

    • (e) a person who has failed to disclose all interests in accordance with clause 4(4)(a).

3 Term of appointment of board members

  • (1) A member—

    • (a) holds office for a term not exceeding 3 years, or any shorter term stated in the notice of appointment given under clause 4(1); and

    • (b) may be reappointed for 1 further term; but

    • (c) must not hold office for more than 2 continuous terms.

    (2) Subject to clause 19 or 20, on the expiry of a term of office, a member continues in office until—

    • (a) the member is reappointed; or

    • (b) the member’s successor is appointed; or

    • (c) the member is notified in writing by the responsible Ministers that the member is not to be reappointed and that no successor is to be appointed.

    (3) A copy of any notice given under this clause must be provided to MBANZ.

4 Method of appointment of members of board

  • (1) Members are appointed by written notice given by the responsible Ministers.

    (2) A copy of every notice of appointment must be provided to MBANZ by the responsible Ministers.

    (3) A person must not be appointed until the following matters are agreed:

    • (a) the date on which the appointment takes effect; and

    • (b) the term of the appointment if for less than 3 years; and

    • (c) the conditions of the appointment.

    (4) Before a person may be appointed, he or she must—

    • (a) disclose to the responsible Ministers—

      • (i) the interests the person would have to disclose under clause 6 if he or she were a member; and

      • (ii) any other interests or relationships that might give rise to those interests; and

      • (iii) any other matters that, if they were known or occurred while he or she were a member, would be likely to result in that person’s removal from office under clause 19; and

    • (b) certify in writing to the responsible Ministers that he or she is not disqualified from being a member under clause 2(2); and

    • (c) give written notice to the responsible Ministers that he or she accepts appointment.

    (5) The acts of a person as a member are valid, even if—

    • (a) the person’s appointment was defective; or

    • (b) the person was not qualified for appointment.

Conflict of interest of members

5 When conflict of interest arises for board members

  • (1) A member is interested in a matter relating to MBANZ if he or she—

    • (a) may derive a financial benefit from the matter; or

    • (b) is the spouse, civil union partner, de facto partner, child, or parent of a person who may derive a financial benefit from the matter; or

    • (c) may have a financial interest in a person to whom the matter relates; or

    • (d) is a partner, director, officer, board member, or trustee of a person who may have a financial interest in a person to whom the matter relates; or

    • (e) is otherwise directly or indirectly interested in the matter.

    (2) The matters relevant to subclause (1) include—

    • (a) the performance of a function or exercise of a power by MBANZ:

    • (b) a negotiation, arrangement, agreement, or contract made or entered into, or proposed to be made or entered into, by MBANZ.

    (3) However, a member is not interested in a matter—

    • (a) if his or her interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence him or her in carrying out his or her responsibilities under Part 2; or

    • (b) because he or she was provided with any indemnity, insurance cover, remuneration, or other benefits in the course of performing his or her functions or duties under Part 2.

6 Obligation to disclose interest

  • (1) A member who is interested in a matter relating to MBANZ must, as soon as practicable after the member becomes aware that he or she is interested, disclose details of the interest—

    • (a) to the chairperson; or

    • (b) if the chairperson is unavailable or interested in the same matter, to the responsible Ministers.

    (2) If the chairperson is interested in a matter, he or she must, as soon as practicable after he or she becomes aware of that interest, disclose details of the interest to—

    • (a) the deputy chairperson (if any); and

    • (b) if the deputy chairperson is unavailable or interested in the same matter, to the responsible Ministers.

    (3) All interests must be fully disclosed in an interests register maintained by MBANZ.

7 Standing disclosure

  • (1) A general notice of an interest in a matter relating to MBANZ, or in a matter that may in future relate to MBANZ, that is disclosed under clause 6 is a standing disclosure of that interest for the purposes of that clause.

    (2) A standing disclosure ceases to have effect if the nature of the interest materially alters or the extent of the interest materially increases.

8 What must be disclosed

  • The details that must be disclosed under clause 6 are—

    • (a) the nature of the interest and the monetary value of the interest (if the monetary value can be quantified); or

    • (b) the nature and extent of the interest (if the monetary value cannot be quantified).

9 Consequences of being interested in matter

  • A member who is interested in a matter relating to MBANZ—

    • (a) is to be disregarded for the purpose of forming a quorum for that part of a meeting of the board or committee during which a discussion or decision relating to the matter occurs or is made; and

    • (b) must not vote or take part in any discussion or decision of the board or any committee relating to the matter, or otherwise participate in any activity of the entity that relates to the matter; and

    • (c) must not sign any document relating to entering into a transaction or initiating the matter.

10 Consequences of failing to disclose interest

  • (1) The board must notify the responsible Ministers of the failure of a member to comply with clause 6, 8, or 9 and of the acts affected, as soon as practicable after becoming aware of the failure.

    (2) A failure of a member to comply with clause 6, 8, or 9 does not affect the validity of an act or matter.

    (3) However, subclause (2) does not limit the right of any person to apply, in accordance with law, for judicial review.

11 Permission to act despite being interested in matter

  • (1) The chairperson may, by prior written notice to the board, permit 1 or more members, or members with a specified class of interest, to do anything otherwise prohibited by clause 9, if the chairperson is satisfied that it is in the public interest to do so.

    (2) The permission may state any conditions that the member must comply with.

    (3) If the chairperson is unavailable or interested, the responsible Ministers may give the permission.

    (4) A permission given under this clause may be amended or revoked in the same way as it may be given.

    (5) The board must disclose an interest to which a permission relates in its annual report, together with a statement of who gave the permission and any conditions or amendments to, or revocation of, the permission.

Chairperson

12 Material interest of chairperson

  • (1) In addition to any interest arising for the chairperson under clause 5, the chairperson has a material interest in a matter before the board if the matter is one that is, or relates to a matter, within the jurisdiction of the Māori Trustee under Part 1 or any other enactment other than Part 2.

    (2) If the chairperson has a material interest in a matter, the chairperson must—

    • (a) disclose details of that interest to the board and to the responsible Ministers; and

    • (b) withdraw from the proceedings of the board in relation to that matter.

    (3) The chairperson may make standing disclosures in accordance with clause 7.

    (4) The details of that must be disclosed under subclause (2)(a) are—

    • (a) the nature of the material interest; and

    • (b) the person or entity in relation to whom or which the Māori Trustee’s jurisdiction applies.

13 Consequences of chairperson failing to disclose

  • (1) If, for any reason, the chairperson fails to disclose a material interest under clause 12, the board must, as soon as practicable after becoming aware of the chairperson’s material interest, notify the responsible Ministers of—

    • (a) the failure of the chairperson to make disclosure and withdraw from the proceedings of the board; and

    • (b) the matters required to be disclosed under clause 12(4).

    (2) However, a failure of the chairperson to comply with subclause (1)—

    • (a) invalidates decisions made by the board in relation to the matter in which the chairperson has a material interest; but

    • (b) does not limit the right of any person to apply, in accordance with the law, for judicial review.

Delegation

14 Ability to delegate

  • (1) The board may delegate its functions or powers, either generally or specifically, by resolution and written notice to—

    • (a) a member or members of the board:

    • (b) the chief executive or other employee or office holder of MBANZ:

    • (c) a committee established in accordance with clause 18:

    • (d) any other person approved by the responsible Ministers:

    • (e) a subsidiary of MBANZ.

    (2) Subclause (1) does not apply to any functions or powers specified in this Act as not being capable of delegation.

    (3) The board must not delegate—

    • (a) this general power of delegation; or

    • (b) the power to borrow.

15 Powers of delegate

  • (1) A delegate to whom any functions or powers of MBANZ or the board are delegated may,—

    • (a) unless the delegation provides otherwise, perform the function or exercise the power in the same manner, subject to the same restrictions and with the same effect as if the delegate were MBANZ or the board; or

    • (b) delegate the function or power, but only—

      • (i) with the prior written consent of the board; and

      • (ii) subject to the same restrictions, and with the same effect, as if the subdelegate were the delegate.

    (2) A delegate who purports to perform a function or exercise a power under a delegation—

    • (a) is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and

    • (b) must produce evidence of his or her authority to do so, if reasonably requested to do so.

16 Effect of delegation

  • No delegation in accordance with this Act—

    • (a) affects or prevents the performance of any function or the exercise of any power by MBANZ or the board; or

    • (b) affects the responsibility of the board for the actions of any delegate acting under the delegation; or

    • (c) is affected by any change in the membership of the board or of any committee, or by any change in the chief executive or an employee.

17 Revocation of delegations

  • (1) A delegation given under clause 14 may be revoked at will by—

    • (a) a resolution of the board and written notice to the delegate; or

    • (b) any other method provided for in the delegation.

    (2) A delegation given under clause 15(1)(b) may be revoked at will by written notice of the delegate to the subdelegate.

Committees

18 Board may appoint committees

  • (1) The board may, by resolution, appoint 1 or more committees for the purposes of clause 14(1).

    (2) A committee—

    • (a) must consist of at least 1 member of the board; and

    • (b) may include any other person that the board thinks fit.

    (3) However, no person may be appointed to be a member of a committee unless, before appointment, that person discloses to the board the details of any interest that he or she may have if a member of the committee.

    (4) Clauses 5 to 11, 21, 23, 29, and 31 to 33 apply, with the necessary modifications, to each member of a committee who is not a member of the board, as if the committee member were a member of the board and, in the case of the disclosure obligations, as if the disclosure must be made to both the committee and the board.

    (5) If the board appoints a committee, it must include the remuneration and other benefits paid to committee members in the annual report, in accordance with section 68(2)(b)(iii).

    (6) Unless otherwise provided for in this Schedule, a committee may regulate its own procedure.

Removal and resignation of board members

19 Removal from office

  • (1) A member may, at any time, be removed from office for any reason by written notice to the member by the responsible Ministers.

    (2) The reasons include (without limitation)—

    • (a) the factors relevant to disqualification under clause 2; or

    • (b) in 1 or more of the following circumstances, if the member:

      • (i) has brought MBANZ into disrepute:

      • (ii) has failed to comply with the duties under section 63:

      • (iii) has become a bankrupt:

      • (iv) has acted with financial impropriety:

      • (v) has been unable to perform his or her functions of office:

      • (vi) has performed the functions of office inadequately:

      • (vii) has failed to attend 3 consecutive meetings of the board, without obtaining the prior consent of the board:

      • (viii) has failed to disclose, without reasonable excuse and as soon as possible after the relevant facts become known to the member, an interest in a matter being considered or about to be considered by the board.

    (3) Before removing a member from office, the responsible Ministers must give the member a reasonable opportunity to make submissions or be heard on the proposal to remove him or her.

    (4) The notice of removal must state the reasons for removal.

20 Resignation

  • (1) A member of the board may resign from office by giving written notice to the responsible Ministers.

    (2) The member must provide a copy of the notice to MBANZ.

    (3) A resignation is effective on receipt of the notice by the responsible Ministers, or at a later time as specified in the notice, but in any case, not later than 3 months after the date of the notice.

21 No entitlement to compensation

  • A member of the board is not entitled to compensation or other payment or benefit if he or she ceases for any reason to hold office as a member.

Vacancies in board’s membership

22 Member of board ceasing to hold office

  • A member ceases to hold office if that person—

    • (a) resigns in accordance with this Act; or

    • (b) is removed from office in accordance with this Act; or

    • (c) becomes disqualified from being a member under this Act; or

    • (d) otherwise ceases to hold office as a member in accordance with any enactment.

23 Vacancy in membership of board

  • (1) If a member, for any reason, ceases to hold office, the responsible Ministers may appoint another person to be a member.

    (2) A member appointed under subclause (1)—

    • (a) must be appointed in accordance with this Act; and

    • (b) may be appointed either—

      • (i) for the balance of the term for which the vacating member was appointed; or

      • (ii) for a new term, as provided for under clause 3(1).

Procedure for meetings of board

24 Procedure generally

  • Unless otherwise provided in this Act, the board may regulate its own procedures.

25 Quorum for board meetings

  • A quorum for a meeting of the board is more than half of the members of the board.

26 Ordinary and special meetings

  • (1) The board must meet as often as it considers necessary for the efficient and proper conduct of the affairs of MBANZ, but in any event, the board must hold ordinary meetings at least 4 times a year.

    (2) The board or the chairperson must appoint the dates, times, and places for ordinary meetings of the board, and give not less than 5 working days’ written notice to members of—

    • (a) the date, time, and place of each meeting; and

    • (b) the agenda for the meeting.

    (3) The chairperson must convene a special meeting of the board if requested to do so in writing by more than half of the members.

    (4) The notice requirements of subclause (2) apply to a special meeting.

27 Conduct of meetings of board

  • (1) The chairperson must preside at all meetings of the board if he or she is present.

    (2) If the chairperson is absent or for any other reason is unavailable,—

    • (a) the deputy chairperson (if 1 was named under section 61(3)) must preside; or

    • (b) if there is no deputy chairperson or the deputy chairperson is absent or unavailable for any reason,—

      • (i) and another member has been given delegated authority to act as the chairperson, that member must preside; and

      • (ii) in any other case, the members present must elect 1 of their number to be the chairperson for the meeting.

    (3) The person acting or elected under subclause (2) has and may exercise all the powers and carry out all the duties and functions of the chairperson for the purposes of the meeting.

    (4) The chairperson may permit members to participate in meetings, or in a particular meeting, by any means of communication that allows the members reasonably to engage in the proceedings of the meeting.

28 Voting at meetings

  • (1) Each member of the board has 1 vote, unless subclause (3) applies.

    (2) All questions arising at a meeting of the board must be decided by a majority of the members present and voting.

    (3) The chairperson or member presiding at the meeting has a deliberative vote and, in the case of an equality of votes, also has a casting vote.

    (4) A written resolution signed by all the members of the board is as effective for all purposes as a resolution passed at a properly convened and conducted meeting of the board, and a resolution may comprise more than 1 duplicated document, each signed by 1 or more of the members.

Remuneration and allowances

29 Remuneration and allowances for members of board

  • (1) A member of the board may not receive payments or fees as an employee of, or consultant for,—

    • (a) MBANZ; or

    • (b) any subsidiary or related entity of MBANZ.

    (2) A member is entitled to receive, from the funds of MBANZ, remuneration for services as a member, at a rate and of a kind determined by the responsible Ministers in accordance with the appropriate fees framework determined by the Government.

    (3) A member is entitled to be reimbursed, from the funds of MBANZ, for actual and reasonable travelling and other expenses incurred in the performance of his or her office as a member.

30 Remuneration and allowances for directors of subsidiaries

  • (1) A director of a subsidiary is entitled to receive, from the funds of the subsidiary,—

    • (a) remuneration and other benefits at a rate and of a kind determined by the responsible Ministers in accordance with the appropriate fees framework determined by the Government; and

    • (b) payment of reimbursing allowances or actual and reasonable expenses incurred in undertaking his or her duties as a member of the governing body of the subsidiary.

    (2) The remuneration and other benefits referred to in subclause (1)(a) must be determined before MBANZ forms or acquires shares in a subsidiary.

Protection from liability for members and employees

31 Immunity of members and employees

  • (1) A member of the board or an employee of MBANZ is not personally liable—

    • (a) for any liability of MBANZ by reason only of being a member or an employee; or

    • (b) to any person (other than MBANZ) for any act or omission by him or her in performing, or the intended performance of, the functions or duties or the exercise or intended exercise of the powers of MBANZ, unless done in bad faith.

    (2) MBANZ is liable for any act or omission for which, but for this clause, the member or employee would have been liable in person.

    (3) In this clause and clause 32,—

    employee includes a former employee

    indemnify includes to relieve or excuse from liability, whether before or after the liability arises

    member includes a former member.

32 Indemnity and insurance for members and employees

  • (1) MBANZ may indemnify a member of the board or employee of MBANZ for—

    • (a) acts or omissions done or omitted by him or her in good faith in performing, or the intended performance of, the functions of MBANZ; and

    • (b) costs incurred in defending or settling a claim or proceedings relating to that liability.

    (2) MBANZ may effect insurance cover for a member of the board or employee of MBANZ in relation to acts or omissions described in subclause (1)(a), except if the act or omission is done or omitted—

    • (a) in bad faith:

    • (b) otherwise than in performing, or the intended performance of, MBANZ’s functions.

    (3) A member or employee who is indemnified or insured by MBANZ in breach of this clause must repay to MBANZ the cost of providing indemnity or effecting insurance cover, to the extent that the indemnity or insurance cover exceeds what is permitted by this clause.

    (4) MBANZ may recover the amount as a debt due in a court of competent jurisdiction.

Information held by or provided to MBANZ

33 Confidentiality, disclosure, and use of information

  • (1) A member of the board who, in his or her capacity as a member, has confidential information that would not otherwise be available to the member must not disclose the information to any person or use or act on it except—

    • (a) for the purposes of MBANZ; or

    • (b) as required or permitted by law; or

    • (c) in complying with the requirement for members to disclose interests.

    (2) Subclause (1) does not apply if the member is first authorised to disclose, use, or act on information by the board.

    (3) In this clause, confidential information means information that the board determines must be treated in confidence.

34 Provision of information for purpose of review

  • For the purpose of a review conducted under section 73,—

    • (a) the reviewer commissioned under that section may make a written request to MBANZ for information relating to the operation and activities of MBANZ; and

    • (b) MBANZ must, as soon as is reasonably practicable, supply to the reviewer any information that is reasonably required for the review.

35 Reliance on information and advice

  • (1) A member of the board, when acting as a member, may rely on reports, statements, financial data, and other information prepared or supplied, and on professional or expert advice given, by any of the following persons:

    • (a) an employee of MBANZ whom the member believes on reasonable grounds is reliable and competent in relation to the matters concerned; or

    • (b) a professional adviser or expert in relation to matters that the member believes on reasonable grounds are within the person’s professional or expert competence; or

    • (c) any other member, or a committee, of the board on which the director did not serve in relation to matters within the member’s or committee’s designated authority; or

    • (d) the Crown.

    (2) Subclause (1) applies to a member only if the member—

    • (a) acts in good faith; and

    • (b) makes proper inquiry, if the need for inquiry is indicated by the circumstances; and

    • (c) has no knowledge that the reliance is unwarranted.

Bank accounts

36 MBANZ must have bank accounts

  • (1) MBANZ must have 1 or more bank accounts, as necessary for carrying out its functions and duties and exercising its powers, at any registered bank (within the meaning of the Reserve Bank of New Zealand Act 1989).

    (2) All money received by MBANZ, or for or on its behalf by a member of the board or an employee, must be paid into a bank account of MBANZ as soon as practicable after the money has been received.

    (3) MBANZ must properly authorise the withdrawal or payment of money from or into its bank accounts.

Contracting

37 Method of contracting

  • (1) A contract or other enforceable obligation may be entered into by MBANZ as provided in this clause.

    (2) An obligation that, if entered into by an individual, is required to be by deed, may be entered into on behalf of MBANZ in writing, signed under the name of MBANZ by—

    • (a) 2 or more of the members of the board; or

    • (b) 1 or more attorneys appointed by MBANZ under clause 38.

    (3) An obligation that, if entered into by an individual, is required to be in writing, may be entered into on behalf of MBANZ in writing by a person acting under the express or implied authority of MBANZ.

    (4) An obligation that, if entered into by an individual, is not required to be in writing, may be entered into on behalf of MBANZ in writing or orally by a person acting under the express or implied authority of MBANZ.

    (5) MBANZ may, in addition to complying with subclauses (1) to (4), affix its common seal (if it has one) to the instrument.

    (6) This clause and clause 38 apply to a contract or other obligation—

    • (a) whether or not that obligation was entered into in New Zealand; and

    • (b) whether or not the law governing that obligation is the law of New Zealand.

38 Appointment of attorneys

  • (1) MBANZ may, by an instrument in writing executed as a deed, appoint a person as its attorney, either generally or in relation to a specified matter.

    (2) An act of the attorney in accordance with the instrument binds MBANZ.

Chief executive of MBANZ

39 Appointment of chief executive

  • (1) The board must appoint a chief executive of MBANZ.

    (2) The chief executive must not be a member of the board.

    (3) In appointing a chief executive, the board must—

    • (a) act independently; and

    • (b) be satisfied that the proposed appointee has disclosed the interests that he or she would, if he or she were a member, have to disclose at that time under clauses 6 and 7; and

    • (c) determine the terms and conditions of employment for the chief executive, including remuneration and allowances.

40 Role of chief executive

  • The chief executive is responsible to the board for the efficient and effective administration of the day-to-day operations of MBANZ and must act in accordance with the lawful policies and directions of the board.

41 Method of appointment

  • (1) The board must appoint the chief executive by written notice to the person to be appointed.

    (2) The notice must—

    • (a) state—

      • (i) the date when the appointment begins; and

      • (ii) the term of the appointment; and

      • (iii) the terms and conditions of employment; and

    • (b) be given only after the person to be appointed has disclosed any interests to the board, as provided for in clauses 5 and 6.

42 Terms and conditions of employment

  • (1) The chief executive holds office on a full-time basis.

    (2) The appointment of the chief executive is for a term of not more than 5 years.

    (3) The chief executive is eligible for reappointment, but for no longer than 1 further term of not more than 5 years.

    (4) The chief executive performs his or her functions subject to the control and direction of the board.

43 Delegation by chief executive

  • (1) The chief executive may, either specifically or generally, delegate in writing to an employee—

    • (a) his or her functions, duties, or powers; and

    • (b) any functions, duties, or powers delegated to the chief executive by the board, subject to the consent of the board.

    (2) The chief executive must not delegate this power to delegate.

    (3) Clause 16 applies to a delegation by the chief executive.

Schedule 2
Consequential amendments to other Acts

s 30

Administration Act 1969 (1969 No 52)

Heading to section 20: omit “Maori” and substitute “Māori”.

Section 20(1)(a) and (b): omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 20(1)(a): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 84(5): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Crown Proceedings Act 1950 (1950 No 54)

Section 35(2)(j): omit “Maori Trustee” and substitute “Māori Trustee”.

Section 35(2)(j): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Family Benefits (Home Ownership) Act 1964 (1964 No 32)

Section 13(2)(a): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Income Tax Act 2007 (2007 No 97)

Paragraph (b) of the definition of public authority in section YA 1: omit and substitute:

  • “(b) includes Public Trust, the Maori Trustee (as defined in section 2(3) of the Māori Trustee and Māori Development Act 2008), and Maori Business Aotearoa New Zealand; and”.

Insolvency Act 2006 (2006 No 55)

Heading to section 386: omit “Maori” and substitute “Māori”.

Section 386: omit “Maori Trustee” in each place where it appears and substitute in each case“Māori Trustee”.

Section 386(3)(b)(ii) and (4): omit “Maori Trustee Act 1953” in each place where it appears and substitute in each case “Māori Trustee and Māori Development Act 1953”.

Maori Affairs Restructuring Act 1989 (1989 No 68)

Section 43(1): omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 43(1): omit “Maori Trustee’s Account” and substitute “Māori Trustee’s Account”.

Section 43(1): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Maori Community Development Act 1962 (1962 No 133)

Section 24: omit “Maori Trustee” and substitute “Māori Trustee”.

Maori Housing Act 1935 (1935 No 34)

Heading to section 27: omit “Maori” and substitute “Māori”.

Section 27: omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 27: omit “Maori Trustee” and substitute “the Māori Trustee”.

Maori Purposes Act 1954 (1954 No 59)

Section 5(2) and (7): omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 5(7): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Maori Reserved Land Act 1955 (1955 No 38)

Heading to section 8: omit “Maori” and substitute “Māori”.

Section 8(1) and (2): omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 8(2): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Maori Soldiers Trust Act 1957 (1957 No 29)

Section 5: omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 5(5): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Heading to section 5A: omit “Maori” and substitute “Māori”.

Section 5A: omit “Maori Trustee” in each both place where it appears and substitute in each case “Māori Trustee”.

Section 5A: omit “Maori Trustee Act 1953” in each place where it appears and substitute in each case “Māori Trustee and Māori Development Act 1953”.

Maori Vested Lands Administration Act 1954 (1954 No 60)

Section 4A(1)(b): omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 4A(1)(b): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 31(1): omit “Maori Trustee” and substitute “Māori Trustee”.

Heading to section 55: omit “Maori” and substitute “Māori”.

Section 55: omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 55(2): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 56: omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 56(3): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Heading to section 64: omit “Maori” and substitute “Māori”.

Section 64: omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 64(6): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Mining Tenures Registration Act 1962 (1962 No 48)

Section 15(2)(b): omit “Maori Trustee” and substitute “Māori Trustee”.

Section 15(2)(b): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Official Information Act 1982 (1982 No 156)

Paragraph (g) of the definition of official information in section 2(1) is amended by omitting “Maori” and substituting “Māori”.

Ombudsmen Act 1975 (1975 No 9)

Part 2 of Schedule 1: omit “Maori Trustee” and substitute “Māori Trustee”.

Part 2 of Schedule 1: insert Māori Business Aotearoa New Zealand in its appropriate alphabetical order.

Protection of Personal and Property Rights Act 1988 (1988 No 4)

Heading to section 41: omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 41: omit “Maori Trustee” in each place where it appears and in each case substitute “Māori Trustee”.

Section 41: omit “Maori Trustee Act 1953” in each place where it appears and substitute in each case “Māori Trustee and Māori Development Act 1953”.

Section 41(1): omit “the Maori Trust Office” and substitute “the Māori Trustee”.

Public Audit Act 2001 (2001 No 10)

Schedule 2: insert “Māori Business Aotearoa New Zealand” in its appropriate alphabetical order.

Public Finance Act 1989 (1989 No 44)

Column 1 of Schedule 4: insert “the Māori Trustee” in its appropriate alphabetical order.

The item relating to the Māori Trustee in Schedule 4: insert a tick in each of the third and fourth columns.

Queen Elizabeth the Second Postgraduate Fellowship of New Zealand Act 1963 (1963 No 2)

Heading to section 3: omit “Maori” and substitute “Māori”.

Section 3: omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 3: omit “Maori Trustee Act 1953” in each place where it appears and substitute in each case “Māori Trustee and Māori Development Act 1953”.

Remuneration Authority Act 1977 (1977 No 110)

Schedule 4: insert “Māori Trustee” in its appropriate alphabetical order.

Te Ture Whenua Maori Act 1993 (1993 No 4)

Definition of Maori Trustee in section 4: omit “Maori Trustee” and substitute “Māori Trustee”.

Definition of Maori Trustee in section 4: omit “Maori Trustee” and substitute “Māori Trustee”.

Definition of Maori Trustee in section 4: omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Development Act 1953”.

Heading to section 159: omit “Maori” and substitute “Māori”.

Section 159: omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 159(6): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 193(2) and (3): omit “Maori Trustee” in each place where it appears and substitute in each case “Māori Trustee”.

Section 193(4): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 224(h)(i): omit “Maori Trustee” and substitute “Māori Trustee”.

Section 224(h)(i): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 225(k)(i): omit “Maori Trustee” and substitute “Māori Trustee”.

Section 225(k)(i): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Trustee Act 1956 (1956 No 61)

Section 49(5)(a): omit “Maori Trustee” and substitute “Māori Trustee”.

Section 49(5)(a): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.

Section 50(4)(a): omit “Maori Trustee” and substitute “Māori Trustee”.

Section 49(5)(a): omit “Maori Trustee Act 1953” and substitute “Māori Trustee and Māori Development Act 1953”.