New Zealand–China Free Trade Agreement Bill

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New Zealand–China Free Trade Agreement Bill

Government Bill

210—1

Explanatory note

General policy statement

This Bill enables the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China (China FTA) done at Beijing on 7 April 2008 to be brought into force. It does so by amending the Tariff Act 1988, the Customs and Excise Act 1996, the Fair Trading Act 1986, the Electricity Act 1992, and the Radiocommunications Act 1989.

Amendments to the Tariff Act 1988 will enable the implementation of preferential tariff rates on imported goods of Chinese origin and will enable transitional safeguard measures to be applied in appropriate circumstances on such imports. Amendments to the Customs and Excise Act 1996 will create a system for issuing certificates of origin for goods exported from New Zealand to China. Amendments to the Fair Trading Act 1986, the Electricity Act 1992, and the Radiocommunications Act 1989 will enable compliance by New Zealand with the Agreement between the Government of New Zealand and the Government of the People's Republic of China on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components (Conformity Cooperation Agreement), which is an integral part of the China FTA. Among other things, these amendments will, to the extent required by the Conformity Cooperation Agreement, extend the application of—

  • the Fair Trading Act 1986 to misleading and deceptive conduct relating to goods exported from New Zealand for supply to China:

  • the Electricity Act 1992 and the Radiocommunications Act 1989 to provide for regulations to enable legal action to be taken against persons who do not fulfil the conformity assessment and certification requirements of the Conformity Cooperation Agreement while purporting to do so.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 relates to the Bill's commencement. It provides that—

  • Parts 1 and 4 come into force on a date to be appointed by Order in Council; and

  • the rest of this Bill comes into force on the day after assent.

The commencement of Parts 1 and 4 is by Order in Council to coordinate the Bill's commencement with the coming into force of the China FTA.

The Bill is an omnibus bill in terms of standing order 264(a). It is intended that the Bill will be divided into separate Bills at the committee of the whole House stage.

Part 1
Amendments to Tariff Act 1988

Clause 3 states that the principal Act being amended in this Part is the Tariff Act 1988.

Subpart 1—Implementation of preferential tariffs under New Zealand–China Free Trade Agreement

Clause 4 states the purpose of subpart 1 of Part 1 of the Bill.

Clause 5 amends section 7(1) of the principal Act to provide that the application of preferential tariffs be given in the case of goods that are the produce or manufacture of China.

Subpart 2—Application of transitional safeguard measures and provisional transitional safeguard measures

Clause 6 states the purpose of subpart 2 of Part 1 of the Bill.

Clause 7 amends section 15A of the principal Act to include the China FTA in the definition of free trade agreement, which currently only covers the New Zealand–Thailand Closer Economic Partnership Agreement done at Bangkok on 19 April 2005 (Thai FTA).

Clauses 8 and 9 consequentially amend sections 15B and 15F so that references to free trade agreement include a reference to the China FTA.

Clause 10 substitutes a new section 15G to provide that the Minister may extend a transitional safeguard measure if the extension is consistent with the provisions of the relevant free trade agreement (either the China FTA or the Thai FTA) and is not inconsistent with New Zealand’s other international obligations.

Clause 11 makes some consequential amendments to section 15H so that references to free trade agreement include a reference to the China FTA. It also amends section 15H(1) to provide that, before applying a provisional transitional safeguard measure under the China FTA, critical circumstances exist.

Part 2
Amendments to Customs and Excise Act 1996

Clause 12 states that the principal Act being amended in this Part is the Customs and Excise Act 1996.

Clause 13 states the purpose of Part 2 of the Bill.

Clause 14 inserts new sections 64A to 64C into the principal Act.

New section 64A provides that the chief executive of the New Zealand Customs Service (the chief executive) may authorise bodies to issue New Zealand certificates of origin in respect of goods being exported to China under the China FTA. A certificate of origin identifies the goods and certifies that they are of New Zealand origin in terms of the China FTA.

New section 64B enables the chief executive to designate bodies as authorised to issue New Zealand certificates of origin in respect of goods (certification bodies). Before designating a body, the chief executive must be satisfied that the body meets any prescribed criteria. A designation may be subject to terms and conditions, prescribed by regulation or imposed at the discretion of the chief executive.

New section 64C is a regulation-making power to allow for such matters as the prescribing of forms and fees and the manner in which applications for designation as a certification body must be made. Regulations may also be made prescribing criteria to be met by bodies wishing to be designated as certification bodies and prescribing terms and conditions of designations.

Clause 15 amends section 95 to provide that certification bodies are required to keep business records.

Part 3
Amendments to Radiocommunications Act 1989

Clause 16 states that the principal Act being amended in this Part is the Radiocommunications Act 1989.

Clause 17 states the purpose of Part 3 of the Bill. This is to implement the Conformity Cooperation Agreement, which is part of the China FTA.

Clause 18(1) inserts new subsection (1D) into section 134 of the principal Act, providing that the power to regulate in relation to interfering equipment, susceptible equipment, or other equipment under section 134(1)(g) includes the power to regulate in relation to such equipment that is, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement.

Clause 18(2) indicates that the provisions of new Schedule 8 apply to material incorporated by reference in regulations made in reliance on new section 134(1D).

Clause 19 adds a new Schedule 8 to the principal Act. New Schedule 8 sets out provisions relating to material incorporated by reference in regulations made in reliance on new section 134(1D). These are standard provisions covering this topic and have been commonly inserted into legislation drafted in the past few years.

Part 4
Amendments to Fair Trading Act 1986

Clause 20 states that the principal Act being amended in this Part is the Fair Trading Act 1986.

Clause 21 states the purpose of Part 4 of the Bill. This is to implement the Conformity Cooperation Agreement, which is part of the China FTA.

Clause 22 amends the principal Act's application provision to indicate that readers can refer to new section 51 for the principal Act's application in relation to an international trade instrument.

Clause 23 adds a new section 51 to the principal Act. New section 51 provides that the principal Act applies to conduct or representations relating to goods that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement (defined in new section 51(2)). New section 51(1)(a) and (b) provide for the application of sections 10 and 13 to goods that are, or may be, exported from New Zealand for supply to China. New section 51(1)(c) and (d) provide that a contravention of section 10 or 13 relating to goods that are, or may be, exported from New Zealand for supply to China is an offence under section 40 and may authorise a warrant being issued in New Zealand under section 47(2) to search a place in New Zealand.

Part 5
Amendments to Electricity Act 1992

Clause 24 states that the principal Act being amended in this Part is the Electricity Act 1992.

Clause 25 states the purpose of Part 5 of the Bill. This is to implement the Conformity Cooperation Agreement, which is part of the China FTA.

Clause 26 amends the Long Title of the principal Act by inserting a new paragraph (ca). This new paragraph (ca) provides that 1 of the Act's purposes is to provide for the regulation of fittings and electrical appliances that are, or may be, exported pursuant to an international trade instrument. As the Long Title is replaced by a purpose provision, section 1A, by the Electricity Amendment Act 2007 (2007 No 70) with effect from a date to be set by Order in Council, clause 27 amends section 1A to the same effect.

Clause 28 provides that section 169(1) is amended in the following ways:

  • paragraph (2)(b) is amended by enabling regulations to be made authorising, controlling, and prescribing conditions in respect of fittings and electrical appliances exported from New Zealand pursuant to the Conformity Cooperation Agreement, and enabling regulations to be made under this paragraph regulating fittings and electrical appliances intended to be used in China pursuant to the Conformity Cooperation Agreement:

  • paragraph (2)(c) is amended by providing that fittings and electrical appliances exported from New Zealand pursuant to the Conformity Cooperation Agreement may be prohibited if they do not satisfy any prescribed tests, standards, or safety criteria, and enabling regulations to be made under this paragraph regulating fittings and electrical appliances intended to be used in China pursuant to the Conformity Cooperation Agreement:

  • a new paragraph (7A) is inserted, which provides that fittings or electrical appliances that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement must comply with requirements relating to the preservation of the quality of electricity supplied in China:

  • paragraph (8) is amended by inserting new subparagraph (aa). This enables regulations to be made under urgency to issue instructions, orders, or requirements to avoid injury caused by fittings or electrical appliances that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement:

  • paragraph (8)(c) is amended to enable tests to be carried out on fittings or electrical appliances that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement:

  • a new subsection (5) is added to section 169 defining the Conformity Cooperation Agreement.

Regulatory impact statement

An extended national interest analysis has been prepared that takes the place of a regulatory impact statement. It is available on the Internet site www.chinafta.govt.nz/1-The-agreement/3-Publications/National-interest-analysis.pdf.

Hon Phil Goff

New Zealand–China Free Trade Agreement Bill

Government Bill

210—1

The Parliament of New Zealand enacts as follows:

1 Title

  • This Act is the New Zealand–China Free Trade Agreement Act 2008.

2 Commencement

  • (1) Parts 1 and 4 come into force on a date to be appointed by the Governor-General by Order in Council.

    (2) The rest of this Act comes into force on the day after the date on which it receives the Royal assent.

Part 1
Amendments to Tariff Act 1988

3 Principal Act amended

  • This Part amends the Tariff Act 1988.

Subpart 1—Implementation of preferential tariffs under New Zealand–China Free Trade Agreement

4 Purpose

  • This subpart amends the principal Act to enable the implementation of preferential tariffs conferred on China under the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008.

5 Application of Tariff

  • Section 7(1) is amended by adding the following paragraph:

    • “(j) in the case of goods—

      • “(i) being the produce or manufacture of China; and

      • “(ii) being goods included in a Tariff item in respect of which a rate of duty is specified after the abbreviation ‘CN’ in the column headed ‘Preferential Tariff’,—

      at the rate so specified.”

Subpart 2—Application of transitional safeguard measures and provisional transitional safeguard measures

6 Purpose

  • This subpart amends the principal Act to provide for the application of transitional safeguard measures and provisional transitional safeguard measures in relation to the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008.

7 Interpretation

  • (1) Section 15A is amended by repealing the definition of free trade agreement and substituting the following definition:

    “free trade agreement means—

    • “(a) the Thai FTA; or

    • “(b) the China FTA”.

    (2) Section 15A is amended by inserting the following definitions in their appropriate alphabetical order:

    “China FTA means the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008

    “Thai FTA means the New Zealand–Thailand Closer Economic Partnership Agreement done at Bangkok on 19 April 2005”.

8 Chief executive may undertake transitional safeguard investigation

  • (1) Section 15B(1) is amended by omitting “the free trade agreement” and substituting “a free trade agreement”.

    (2) Section 15B(2)(b) is amended by omitting “the free trade agreement” and substituting “the relevant free trade agreement”.

9 Application of transitional safeguard measure

  • (1) Section 15F(4)(b) is amended by omitting “the free trade agreement” and substituting “the relevant free trade agreement”.

    (2) Section 15F(4)(c) is amended by omitting “the free trade agreement” and substituting “the relevant free trade agreement”.

10 Section 15G substituted

  • Section 15G is repealed and the following section substituted:

    “15G Extension of transitional safeguard measure

    • The Minister may extend a transitional safeguard measure applied under section 15F if the extension is—

      • “(a) consistent with the provisions of the relevant free trade agreement; and

      • “(b) not inconsistent with New Zealand's other international obligations.”

11 Provisional transitional safeguard measure

  • (1) Section 15H(1)(a) is amended by omitting “the free trade agreement” and substituting “the relevant free trade agreement”.

    (2) Section 15H(1) is amended by repealing paragraph (b) and substituting the following paragraph:

    • “(b) there exist,—

      • “(i) in relation to a provisional transitional safeguard measure to be applied under the Thai FTA, highly unusual and critical circumstances; or

      • “(ii) in relation to a provisional transitional safeguard measure to be applied under the China FTA, critical circumstances; and”.

    (3) Section 15H(4)(b) is amended by omitting “the free trade agreement” and substituting “the relevant free trade agreement”.

    (4) Section 15H(4)(c) is amended by omitting “the free trade agreement” and substituting “the relevant free trade agreement”.

Part 2
Amendments to Customs and Excise Act 1996

12 Principal Act amended

  • This Part amends the Customs and Excise Act 1996.

13 Purpose

  • This Part amends the principal Act to provide for a system of issuing New Zealand certificates of origin in relation to goods being exported to China under the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008.

14 New sections 64A to 64C inserted

  • The following sections are inserted after section 64:

    “64A New Zealand certificates of origin for goods for export to China

    • “(1) A body authorised by the chief executive under section 64B (a certification body) may issue a New Zealand certificate of origin in respect of goods for export to China.

      “(2) A New Zealand certificate of origin, in respect of goods for export to China, is a document issued by a certification body that—

      • “(a) identifies the goods to which it relates; and

      • “(b) certifies that those goods originate in New Zealand.

      “(3) Goods originate in New Zealand if, for the purposes of the China FTA, the goods satisfy the requirements of the rules of origin prescribed for the China FTA.

      “(4) For the purposes of this section, China FTA means the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008.

    “64B Bodies authorised to issue New Zealand certificates of origin

    • “(1) The chief executive may designate a body as a certification body if the chief executive is satisfied that the body meets the prescribed criteria (if any).

      “(2) A designation may be subject to any prescribed terms and conditions and any additional terms and conditions the chief executive thinks fit.

    “64C Regulations relating to New Zealand certificates of origin and certification bodies

    • Without limiting the power to make regulations conferred by section 286, the Governor-General may make regulations for any of the following purposes:

      • “(a) prescribing forms for the purposes of sections 64A and 64B; and

      • “(b) prescribing the manner in which applications for designation as a certification body must be made; and

      • “(c) prescribing criteria for certification bodies; and

      • “(d) prescribing terms and conditions subject to which designations as a certification body may be made; and

      • “(e) prescribing fees.”

15 Keeping of business records

  • Section 95(1) is amended by omitting “and exporter” and substituting “exporter, and body authorised to issue a New Zealand certificate of origin under section 64B”.

Part 3
Amendments to Radiocommunications Act 1989

16 Principal Act amended

  • This Part amends the Radiocommunications Act 1989.

17 Purpose

  • This Part amends the principal Act to implement Annex 14 of the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008, namely the Agreement between the Government of New Zealand and the Government of the People's Republic of China on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components.

18 Regulations

  • (1) Section 134 is amended by inserting the following subsection after subsection (1C):

    • “(1D) The power to regulate in relation to interfering equipment, susceptible equipment, or other equipment under subsection (1)(g) includes the power to regulate in relation to such equipment that is, or may be, exported from New Zealand pursuant to the Agreement between the Government of New Zealand and the Government of the People's Republic of China on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components, which is Annex 14 to the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008.”

    (2) Section 134 is amended by adding the following subsection:

    • “(3) The provisions of Schedule 8 apply to material incorporated by reference in regulations made in reliance on subsection (1D).”

19 New Schedule 8 added

  • The principal Act is amended by adding the Schedule 8 set out in the Schedule of this Act.

Part 4
Amendments to Fair Trading Act 1986

20 Principal Act amended

  • This Part amends the Fair Trading Act 1986.

21 Purpose

  • This Part amends the principal Act to implement Annex 14 of the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008, namely the Agreement between the Government of New Zealand and the Government of the People's Republic of China on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components.

22 Application of Act to conduct outside New Zealand

  • Section 3 is amended by adding the following subsection as subsection (2):

    • “(2) See section 51 for the application of this Act in relation to an international trade instrument.”

23 New section 51 inserted

  • The following section is inserted after section 50:

    “51 Application of Act to goods that are, or may be, exported to China

    • “(1) This Act applies to conduct or representations relating to goods that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement in the same way as this Act applies to goods supplied within New Zealand as follows:

      • “(a) section 10 applies to conduct relating to goods that are, or may be, exported from New Zealand for supply to China:

      • “(b) section 13 applies to representations relating to goods that are, or may be, exported from New Zealand for supply to China:

      • “(c) a contravention of section 10 or 13 is an offence under section 40 and may authorise a warrant being issued in New Zealand under section 47(2) to search a place in New Zealand if the contravention relates to goods that are, or may be, exported from New Zealand for supply to China.

      “(2) In this section, Conformity Cooperation Agreement means the Agreement between the Government of New Zealand and the Government of the People's Republic of China on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components, which is Annex 14 of the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008.”

Part 5
Amendments to Electricity Act 1992

24 Principal Act amended

  • This Part amends the Electricity Act 1992.

25 Purpose

  • This Part amends the principal Act to implement Annex 14 of the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008, namely the Agreement between the Government of New Zealand and the Government of the People's Republic of China on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components.

26 Long Title amended

  • The Long Title is amended by inserting the following paragraph after paragraph (c):

    • “to provide for the regulation of fittings and electrical appliances that are, or may be, exported pursuant to an international trade instrument; and”.

27 Purposes

  • Section 1A is amended by adding the following paragraph after paragraph (d):

    • “(da) to provide for the regulation of fittings and electrical appliances that are, or may be, exported pursuant to an international trade instrument; and”.

28 Regulations

  • (1) Section 169(1)(2)(b) is amended by—

    • (a) inserting “exportation from New Zealand pursuant to the Conformity Cooperation Agreement,” after “importation,”; and

    • (b) adding “(including fittings and electrical appliances intended to be used in China after their exportation from New Zealand pursuant to the Conformity Cooperation Agreement)”.

    (2) Section 169(1)(2)(c) is amended by—

    • (a) inserting “exportation from New Zealand pursuant to the Conformity Cooperation Agreement,” after “importation,”; and

    • (b) adding “(including fittings and electrical appliances intended to be used in China after their exportation from New Zealand pursuant to the Conformity Cooperation Agreement)”.

    (3) Section 169(1) is amended by inserting the following paragraph after paragraph (7):

    • “(7A) providing that fittings or electrical appliances that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement must comply with requirements relating to the preservation of the quality of electricity supplied in China:”.

    (4) Section 169(1)(8) is amended by inserting the following subparagraph after subparagraph (a):

    • “(aa) in cases of urgency, to issue, in such manner as may be prescribed, instructions, orders, or requirements for securing the protection of persons from injuries caused, directly or indirectly, by electricity to the extent that such injuries are caused by fittings or electrical appliances that are, or may be, exported pursuant to the Conformity Cooperation Agreement:

      Provided that any such instruction, order, or requirement must remain in force for such period, not exceeding 6 months, as may be determined by the Secretary or until its earlier revocation by the Secretary:”.

    (5) Section 169(1)(8)(c) is amended by adding “(including fittings or electrical appliances that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement)”.

    (6) Section 169 is amended by adding the following subsection:

    • “(5) In this section, Conformity Cooperation Agreement means the Agreement between the Government of New Zealand and the Government of the People's Republic of China on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components, which is Annex 14 of the Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China done at Beijing on 7 April 2008.”

Schedule 
New Schedule 8 added to principal Act

s 19

Schedule 8
General provisions relating to material incorporated by reference in regulations

s 134(3)

1 Effect of material incorporated by reference in regulations

  • (1) This clause and clauses 2 to 8 apply to material incorporated by reference in regulations made in reliance on section 134(1D).

    (2) Material incorporated by reference in regulations has effect as part of the regulations.

2 Effect of amendments to, or replacement of, material incorporated by reference in regulations

  • An amendment to, or replacement of, material incorporated by reference in regulations (regulations A) has legal effect as part of regulations A only if regulations made after the making of regulations A state that the particular amendment or replacement has that effect.

3 Proof of material incorporated by reference

  • (1) A copy of the material incorporated by reference in regulations, including any amendment to, or replacement of, the material, must be—

    • (a) certified as a correct copy of the material by the Secretary; and

    • (b) retained by the Secretary.

    (2) The production in proceedings of a certified copy of the material is, in the absence of evidence to the contrary, sufficient evidence of the incorporation in the regulations of the material.

4 Effect of expiry or revocation of material incorporated by reference

  • Material incorporated by reference in regulations that expires or is revoked, or that ceases to have effect, ceases to have legal effect as part of the regulations only if regulations state that the material is revoked or ceases to have legal effect.

5 Access to material incorporated by reference

  • (1) The Secretary—

    • (a) must make the material referred to in subclause (2) available for inspection during working hours free of charge at the head office of the Ministry of Economic Development and at any other places that the Secretary determines are appropriate; and

    • (b) must make copies available for purchase at a reasonable price; and

    • (c) may make copies of the material available in any other way that the Secretary considers appropriate in the circumstances (for example, on an Internet site); and

    • (d) must give notice in the Gazette stating that—

      • (i) the material is incorporated in the regulations and the date on which the regulations were made; and

      • (ii) the material is available for inspection during working hours, free of charge, and the location of the place or places at which it can be inspected; and

      • (iii) copies of the material can be purchased and the location of the place or places at which they can be purchased; and

      • (iv) if copies of the material are available under paragraph (c), the material is available in other ways, and giving the details of how and where it can be accessed and obtained.

    (2) In this clause, material is—

    • (a) material incorporated by reference in regulations:

    • (b) any amendment to, or replacement of,—

      • (i) that material that is incorporated in the regulations; or

      • (ii) the material referred to in paragraph (a) with the amendments or replacement material incorporated within it:

    • (c) if the material referred to in paragraph (a) or (b) is not in an official New Zealand language, as well as the material itself, an accurate translation of the material in an official New Zealand language.

    (3) A failure to comply with this clause does not invalidate regulations that incorporate material by reference.

6 Acts and Regulations Publication Act 1989 not applicable to material incorporated by reference

  • The Acts and Regulations Publication Act 1989 does not apply to material incorporated by reference in regulations or to an amendment to, or replacement of, that material.

7 Application of Regulations (Disallowance) Act 1989 to material incorporated by reference

  • (1) Nothing in section 4 of the Regulations (Disallowance) Act 1989 requires material that is incorporated by reference in regulations to be laid before the House of Representatives.

    (2) The Regulations (Disallowance) Act 1989, apart from the modification to the application of section 4 of that Act made by subclause (1) of this clause, applies to regulations that incorporate material by reference.

8 Application of Standards Act 1988 not affected

  • Clauses 1 to 7 do not affect the application of sections 22 to 25 of the Standards Act 1988.