Trans-Pacific Partnership Agreement Amendment Bill

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Trans-Pacific Partnership Agreement Amendment Bill

Government Bill

133—1

Explanatory note

General policy statement

The Trans-Pacific Partnership Agreement Amendment Bill (the Bill) is an omnibus Bill introduced in accordance with Standing Order 263(a). The amendments deal with an interrelated topic that can be regarded as implementing a single broad policy.

The Bill amends New Zealand law as part of the implementation of the free trade agreement named the Trans-Pacific Partnership (TPP) Agreement between New Zealand, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, the United States, and Viet Nam, signed at Auckland on 4 February 2016 (the Agreement).

Most of the obligations in the Agreement would be met by New Zealand’s existing domestic legal and policy regime. However, a number of legislative and regulatory amendments would be required to align New Zealand’s domestic law with certain obligations in the Agreement, and thereby enable New Zealand to ratify the Agreement. The Bill introduces amendments to the following enactments:

  • the Agricultural Compounds and Veterinary Medicines Act 1997, so as to extend current data protection from 5 to 10 years for data provided in support of an application for marketing approval for a new agricultural chemical product, as required by the intellectual property chapter of the Agreement:

  • the Copyright Act 1994, so as to extend the copyright term from life plus 50 years to life plus 70 years, to provide a new regime for protection of technological protection measures, to provide new rights for performers, to provide additional protection for rights management information, to extend the border protection measures to allow the New Zealand Customs Service to detain exports of suspected pirated copyright works where a notice has been accepted from rights holders and to give ex officio powers to Customs officers to temporarily detain suspected pirated copyright works without a notice from rights holders, and to extend the protection of encrypted programme-carrying satellite and cable signals, as required by the intellectual property chapter of the Agreement:

  • the Customs and Excise Act 1996, so as to allow the New Zealand Customs Service to issue advance rulings on the valuation of imports to TPP importers, exporters, or producers, as required by the customs administration and trade facilitation chapter of the Agreement:

  • the Dairy Industry Restructuring Act 2001 (including Schedules 5A and 5B), so as to implement an export licence allocation system for the country-specific quota access received for dairy products in the Agreement for the United States market:

  • the Hazardous Substances and New Organisms Act 1996, so as to provide a 60-day comment period on proposed technical regulations that will need to be notified to the World Trade Organization, as required by the technical barriers to trade chapter of the Agreement:

  • the Legislation Act 2012, so as to ensure that New Zealand can promptly publish on a single Internet site all central Government subordinate instruments, together with an explanation of their purpose and rationale, to the extent required by the transparency and anti-corruption chapter of the Agreement:

  • the Overseas Investment Act 2005, so as to provide a power to make regulations to implement higher investment screening thresholds for overseas investments in significant business assets in order to comply with New Zealand’s obligations under the investment chapter of the Agreement and other related existing international trade agreements (being the Most-Favoured-Nation obligations in New Zealand’s existing trade agreements with China, Chinese Taipei, Korea, and Hong Kong, and the CER Investment Protocol with Australia). Under TPP and existing most-favoured-nation (MFN) obligations, the screening threshold for certain non-government investors will increase from $100 million to $200 million. The threshold for Australia is currently $498 million for non-government investors and $104 million for government investors (indexed for inflation), which will remain unchanged:

  • the Patents Act 2013, so as to provide for the requirement to provide a 12-month grace period for patent applications and to allow for the granting of patent term extensions to compensate a patent holder if there are unreasonable delays in the Intellectual Property Office of New Zealand granting the patent, or an unreasonable curtailment of the patent term as a result of Medsafe’s marketing approval process for pharmaceutical products, as required by the intellectual property chapter of the Agreement:

  • the Tariff Act 1988, so as to enable regulations to be made that apply the preferential tariff rates agreed under the Agreement, to provide for the transitional safeguard mechanism required under the trade remedies chapter of the Agreement, and to provide for the emergency action (safeguards) mechanism and associated procedures required under the textiles and apparel chapter of the Agreement:

  • the Trade Marks Act 2002, so as to provide authority to courts to award additional damages for trade mark infringement, to extend the border protection measures to allow the New Zealand Customs Service to detain exports of suspected trade mark infringing goods where a notice has been accepted from rights holders and to give ex officio powers to Customs officers to temporarily detain suspected trade mark infringing goods without a notice from rights holders, and to require the courts in trade mark infringement cases to order the destruction of counterfeit goods except in exceptional cases, as required by the intellectual property chapter of the Agreement:

  • the Wine Regulations 2006, so as to introduce a standard that restricts the export of grape wine labelled as “ice wine” that is not made from grapes frozen on the vine as required by the wine and distilled spirits annex of the technical barriers to trade chapter of the Agreement.

A copy of the Agreement can be found at https://www.tpp.mfat.govt.nz/text

Departmental disclosure statement

The Ministry of Foreign Affairs and Trade is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

National interest analysis and regulatory impact statement

An extended national interest analysis has been prepared that fulfils the requirements for a regulatory impact analysis. The Government publicly released the national interest analysis on 26 January 2016. The national interest analysis sets out the reasons for and the implications of New Zealand becoming a party to the Trans-Pacific Partnership Agreement and the means of implementing the treaty domestically. The national interest analysis was presented to the House of Representatives on 9 February 2016, in accordance with Standing Order 397(2) (presentation of national interest analyses for international treaties). A copy of the national interest analysis can be found at—

In addition, the Ministry of Business, Innovation, and Employment produced a regulatory impact statement on 6 April 2016 to help inform the main policy decisions taken by the Government relating to the intellectual property contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill comes into force on a date appointed by the Governor-General by Order in Council. One or more Orders in Council may be made bringing different provisions into force on different dates (for example, if desirable for the transition).

Commencement of the Bill by Order in Council is necessary in order to co-ordinate the Bill’s commencement with the entry into force of the Agreement.

Part 1Amendments to Agricultural Compounds and Veterinary Medicines Act 1997

Part 1 amends the Agricultural Compounds and Veterinary Medicines Act 1997 (the ACVM Act). The amendments relate to Article 18.47 of the Agreement, which provides for the protection of undisclosed test and other data required to gain marketing approval for an agricultural chemical product. Under the ACVM Act, registration of an agricultural compound is required before a compound may be sold, used, manufactured, or imported.

Clause 4 inserts new section 2A, which gives effect to the provisions set out in new Schedule 1 (clause 6 inserts new Schedule 1). New Schedule 1 contains a savings provision for innovative agricultural compound applications made before the amendments set out in Part 1 come into force.

Clause 5

  • amends the definition of innovative agricultural compound application in section 72 so that an application is excluded from the definition only if it is for an agricultural compound that has an active ingredient in common with a previously registered compound (currently, an application is excluded if the compound has an active ingredient that has been referred to in a previous application, even if that previous application has not been granted); and

  • amends the definition of protected period in section 72—

    • to extend from 5 to 10 years after the date of registration the protected period that applies to confidential supporting information given in support of a successful innovative agricultural compound application for full registration; and

    • so that the protected period for an application for full registration no longer ends if the application is not decided within 5 years.

At the time of this Bill’s introduction, the Agricultural Compounds and Veterinary Medicines Amendment Bill is being considered by the Primary Production Committee. That Bill also contains amendments to Part 6 of the ACVM Act, including the definitions of innovative agricultural compound application and protected period.

Part 2Amendments to Copyright Act 1994

Part 2 amends the Copyright Act 1994.

Clause 8 amends the interpretation section to insert a definition of rights management information.

Clauses 9 to 12 relate to copyright term extension. The provisions relate to Article 18.63 of the Agreement.

Clause 9 amends section 22 to—

  • increase the copyright term for most literary, dramatic, musical, and artistic works from 50 years to 70 years:

  • amend how the copyright term is calculated if a work is computer-generated or of unknown authorship.

Clause 10 amends section 23 to increase the copyright term for sound recordings and films from 50 years to 70 years.

Clause 11 amends section 28 to—

  • increase the copyright term in relation to literary, dramatic, musical, and artistic works of international organisations from 50 years to 70 years:

  • amend how the copyright term of those works is calculated.

Clause 12 consequentially amends section 67 to update a reference to the previous copyright term duration.

Clauses 13 to 19 relate to border protection measures. The provisions relate to Articles 18.74 and 18.76 of the Agreement.

Clause 13 amends the definitions of certain border protection terms in section 135 to clarify that the border protection measures apply to both imports and exports. The definitions also clarify how items for private and domestic use are described.

Clause 14 inserts new sections 135A to 135C. The new provisions introduce a power for Customs to detain an item ex officio if an officer has reasonable cause to suspect that an item may be a pirated copy. In summary,—

  • new section 135A includes the power to detain items:

  • new section 135B includes notice provisions related to the power to detain:

  • new section 135C relates to the release of items.

Clauses 15 to 18 amend sections 137, 140, 141, and 141A—

  • so that those sections apply to items in the control of the Customs:

  • to clarify how items for private and domestic use are described.

Clause 19 amends section 142 to—

  • provide that a remedy for pirated copies is for the item to be forfeited to the Crown instead of the claimant:

  • clarify how items for private and domestic use are described.

Clauses 20 to 38 relate to performers’ rights and contractual transfers. The provisions relate to Articles 18.7.2(f) and 18.67 of the Agreement. Article 18.7.2(f) requires New Zealand to accede to the WIPO Performances and Phonograms Treaty done at Geneva on 20 December 1996 (the WIPO treaty).

Clause 20 amends the definitions of performers’ rights terms in section 169 to—

  • include definitions of exclusive performer’s rights licence and performers’ property rights:

  • amend the definition of illicit recording, as used in certain provisions, to include recordings used in relation to performers’ rights being infringed under new section 174C and recordings referred to in new section 198(1A)(b).

Clause 21 amends section 170 to repeal the previous application provisions. New application and transitional provisions are included in Schedule 1.

Clause 22 inserts new sections 170A to 170I relating to moral rights for performers. In summary,—

  • new section 170A provides that a performer’s rights are infringed if the performer is not identified in relation to a performance in certain circumstances:

  • new section 170B sets out how a performer should be identified and contains provisions about identifying groups:

  • new section 170C provides that a performer must assert the right to be identified and how an assertion may take place:

  • new section 170D sets out exceptions to the right to be identified:

  • new section 170E provides that a performer’s rights are infringed if a performance is subjected to derogatory treatment:

  • new section 170F sets out how a performance is subjected to derogatory treatment:

  • new section 170G sets out exceptions to the right relating to derogatory treatment:

  • new section 170H relates to consent and waiver of rights relating to the moral rights provided for in new sections 170A and 170E:

  • new section 170I sets out the application of the new moral rights.

Clause 23 repeals the cross-heading above section 171 as this is no longer an accurate description of the relevant provisions.

Clause 24 amends section 172 to clarify which rights apply to sound recordings and which rights apply to films.

Clauses 25 to 27 amend sections 173 and 174 to restrict their application to recordings that are films and to insert a new subpart heading.

Clause 28 inserts new sections 174A to 174D, relating to performers’ property rights in relation to sound recordings. In summary,—

  • new section 174A provides that new sections 174B to 174D only apply to recordings that are sound recordings:

  • new section 174B relates to Article 10 of the WIPO Treaty and provides that a performer’s rights are infringed if a person makes a sound recording of a performance available to the public without the performer’s consent:

  • new section 174C relates to Article 7 of the WIPO Treaty and provides that a performer’s rights are infringed if a person copies a sound recording of a performance without the performer’s consent:

  • new section 174D relates to Article 8 of the WIPO Treaty and provides that a performer’s rights are infringed if a person issues a copy of a sound recording of a performance to the public without the performer’s consent.

Clause 29 repeals the cross-heading above section 175 as this is no longer an accurate description of the relevant provisions.

Clause 30 updates references to “this Part” in specified sections to clarify which performers’ rights the exemptions in those sections apply to. Clause 30 also amends section 180 to include recordings, or copies of recordings, made in accordance with new section 192A.

Clause 31 inserts new section 192A, which allows certain acts to be done without infringing a performer’s property rights.

Clause 32 replaces section 193, relating to duration of rights, and extends the general term of protection from 50 years to 70 years.

Clause 33 replaces section 194, relating to transmission of performers’ rights, and inserts new sections 194 to 194K. These sections largely mirror equivalent provisions in the principal Act relating to copyright. In summary,—

  • new section 194 sets out the general rule about transmission:

  • new section 194A provides that moral rights are not assignable:

  • new section 194B relates to the transmission of moral rights on death:

  • new section 194C provides that the rights conferred by sections 171 to 174 (relating to consent for recording or live transmission and to film recordings) are not assignable:

  • new section 194D relates to the transmission of the rights conferred by sections 171 to 174 (relating to consent for recording or live transmission and to film recordings) on death:

  • new section 194E sets out the general rules about transmission of performers’ property rights:

  • new section 194F relates to assignment of performers’ property rights:

  • new section 194G relates to the transmission of performers’ property rights on death:

  • new section 194H relates to the assignment of future property rights:

  • new section 194I relates to licences and exclusive licences:

  • new section 194J relates to the rights and remedies of exclusive licensees:

  • new section 194K sets out provisions relating to the exercise of concurrent rights as between performers and exclusive licensees.

Clauses 34 and 35 amend section 195 (and the cross-heading above that section) to include references to waiver as well as consent in section 195.

Clause 36 amends section 196 to—

  • include an account of profits as a possible remedy for infringement of performers’ rights:

  • provide that damages are not available as a remedy in cases of innocent infringement.

Clause 37 inserts new section 196A, relating to proceedings against the Crown. This provision mirrors the equivalent provision for copyright in section 65.

Clause 38 amends section 198 to include a new offence related to specified recordings. The new provision is based on section 131(1)(f), which provides an equivalent offence in relation to copyright. Clause 38 also replaces the term illicit recording with specified recording.

Clauses 39 to 42 relate to technological protection measures (TPMs). The provisions relate to Article 18.68 of the Agreement.

Clause 39 replaces section 226 to amend the definitions of TPM terms. The current definition of TPM is extended to include access control TPMs (in addition to measures that prevent or inhibit the infringement of copyright or of certain related performers’ rights). An access control TPM is a measure that controls access to a work. This means that the prohibitions that relate to providing devices or services that enable circumvention will now extend to access control TPMs.

The definitions clarify that devices that can be circumvented accidentally are not TPMs.

Clause 40 replaces section 226A (which relates to prohibited conduct in relation to TPMs). The clause inserts new provisions that prohibit 3 kinds of conduct. In summary,—

  • new section 226A prohibits dealing in TPM circumvention devices. A TPM circumvention device includes, for example, a device, product, or component that is promoted, advertised, or otherwise marketed for the purpose of circumventing a TPM:

  • new section 226AB prohibits providing a service for the purpose of circumventing a TPM:

  • new section 226AC prohibits a person from circumventing an access control TPM without authority if the person knows, or has reason to believe, that he, she, or it is circumventing the TPM. The section does not prevent a person from circumventing a TPM in accordance with new sections 226D to 226K. This is a new prohibition.

Clause 41 amends section 226B. This section gives rights to an issuer of a work to obtain a civil remedy for a contravention of the prohibitions (for example, damages or an account of profits). The amendments make consequential changes. In addition, the application of section 121(1) is clarified. Section 121(1) limits the available remedies to an account of profits (rather than damages) in the case of an innocent infringement (that is, where the defendant did not know and had no reason to believe that the acts complained of infringed the relevant rights).

Clause 42 replaces sections 226C to 226J.

New section 226C provides for an offence where a person knowingly contravenes new sections 226A to 226AC in the course of a business. The offence has a maximum penalty of a $150,000 fine or a 5-year term of imprisonment, or both.

New sections 226D to 226J provide for situations in which a person may circumvent a TPM without contravening the various prohibitions. The provisions are designed to ensure that a person can still use copyright content for legitimate purposes (that is, for a use that does not infringe copyright or certain related performers’ rights). In summary,—

  • new section 226D allows a person to circumvent a TPM to enable the person to do an act that does not infringe the copyright in the TPM work and does not infringe related performers’ rights. This may include, for example, a permitted act under Part 3 (such as fair dealing with a work for the purposes of criticism, review, news reporting, research, or private study). However, regulations may provide that this provision does not apply in prescribed circumstances. Regulations may be necessary, for example, to narrow this exemption to prevent it from applying in inappropriate circumstances:

  • new section 226E allows a person to circumvent a TPM that controls geographic market segmentation by preventing in New Zealand the playing or operating of a physical non-infringing copy of the TPM work:

  • new section 226F allows the Crown to circumvent a TPM in connection with anything lawfully done by or on behalf of the Crown for the purposes of law enforcement, national security, or performing or exercising statutory functions, powers, or duties:

  • new section 226G allows a person to circumvent a TPM to enable the person to undertake encryption research:

  • new section 226H relates to computer programs that are embedded in a machine or device. It allows a person to circumvent a TPM to enable the person to circumvent a restriction on the use of goods or services where the use of the goods or services does not infringe copyright or related performers’ rights:

  • new section 226I allows a person to circumvent a TPM in certain circumstances where the TPM involves a computer program that is no longer supported by a remote server:

  • new section 226J allows a person to circumvent a TPM in certain circumstances in order to allow 2 or more computer programs to work together, to maintain the security of a computer or a computer network, or to protect privacy.

New section 226K allows a person to circumvent a TPM to do an act that is permitted by regulations. Under new section 234(3), the regulations must not permit a person to circumvent a TPM to do an act that infringes copyright or a related performers’ right. This regulation-making power is designed to provide more certainty about the circumstances in which a TPM may be circumvented for a non-infringing use.

New section 226L provides that the exceptions in new sections 226E to 226J are subject to modifications that are prescribed by regulations. The regulations can provide that the exceptions do not apply, or apply with modifications. This regulation-making power is designed to provide more certainty about the circumstances in which a TPM may be circumvented for a non-infringing use and to prevent the exceptions from applying in inappropriate circumstances. Under new section 234(3), the regulations must not permit a person to circumvent a TPM to do an act that infringes copyright or a related performers’ right.

Clause 44 amends section 234 to provide for these new regulation-making powers. The powers are subject to a number of safeguards, including a consultation requirement, a requirement for the Minister to have regard to the purposes of the principal Act, and for the Minister to be satisfied of certain matters. The Minister’s reasons for his or her recommendation to make the regulations must be published together with the regulations.

New section 226M protects certain not-for-profit entities (including educational establishments, archives, and libraries) from civil and criminal liability relating to acts done in the performance or exercise of their functions, powers, or duties.

Clause 42 also inserts new sections 226N to 226S, which relate to rights management information (RMI) and replace sections 226F to 226J (which relate to copyright management information).The provisions relate to Article 18.69 of the Agreement. In summary,—

  • new section 226N defines terms relating to RMI, including rights management information. The definition is similar to the existing definition of copyright management information (except that it includes information that identifies a performer and information in the form of numbers and codes):

  • new section 226O prohibits a person from removing or modifying RMI without authority. The provision is similar to the current section 226G. However, rather than referring to the authority of the copyright owner or the exclusive licensee, the provision refers to the authority of the person who authorises or instigates the information being attached to the copy of the work (or their successor):

  • new section 226P prohibits a person from distributing or importing RMI if the information has been modified without authority. This is a new prohibition:

  • new section 226Q prohibits a person from dealing in a copy of a work if any RMI has been removed or modified without authority. The provision is similar to the current section 226H. However, the provision applies whether or not the dealing is in the course of a business. The requirement for the contravention to be in the course of a business has been moved to the offence section (new section 226S). However, the “in the course of a business” requirement will no longer apply in relation to civil remedies:

  • new section 226R provides for civil remedies for a contravention of the prohibitions (for example, damages or an account of profits). The provision is similar to the current section 226I. However, the provision is extended to protect the rights of performers, authors, and directors. In addition, the application of section 121(1) is clarified. Section 121(1) limits the available remedies to an account of profits (rather than damages) in the case of an innocent infringement (that is, where the defendant did not know and had no reason to believe that the acts complained of infringed the relevant rights):

  • new section 226S provides for an offence for a contravention of the prohibitions. The provision is similar to the current section 226J. However, the offence applies to each of the prohibitions (not just the prohibition against commercial dealing in a work that is subject to interference). In addition, the element of the offence relating to knowledge has been clarified. The offence has a maximum penalty of a $150,000 fine or a 5-year term of imprisonment, or both.

Clause 42 also inserts new sections 226T to 226Y, which relate to the protection of encrypted programme-carrying satellite and cable signals. The provisions relate to Article 18.79 of the Agreement. In summary,—

  • new section 226T defines various relevant terms:

  • new section 226U prohibits a person from dealing in a decoding device or system if, for example, the person knows or has reason to believe that it is intended to be used to assist in the unauthorised decoding of a satellite signal:

  • new section 226V prohibits a person from receiving and decoding, or further distributing, a satellite signal if the person knows that it is being or has been decoded without authorisation:

  • new section 226W prohibits a person from dealing in equipment knowing that the equipment is intended to be used in the unauthorised reception of a cable signal. It also prohibits a person from receiving, or assisting another person to receive, a cable signal knowing that the reception of the signal is unauthorised:

  • new section 226X provides for civil remedies for a contravention of the prohibitions (for example, damages or an account of profits):

  • new section 226Y provides for an offence of contravening new section 226U. If the offence is committed in the course of a business, the maximum penalty is a $150,000 fine or a 5-year term of imprisonment, or both. In any other case, the maximum penalty is a $5,000 fine. A contravention of new section 226V is also an offence with a maximum penalty of a $5,000 fine.

Clause 43 consequentially amends section 228.

Clause 44 amends the regulation-making power in section 234. See the explanation for new sections 226D, 226K, and 226L.

Clause 45 amends Schedule 1 to—

  • separate the schedule into different Parts and make associated consequential amendments:

  • repeal clause 17(2)(b):

  • update the references to copyright term from 50 years to 70 years in clauses 17(2)(d)(ii) and 18:

  • clarify that clauses 17 to 19 are subject to new Part 2 of the schedule:

  • introduce a new Part 2 with transitional provisions.

New subpart 1 of Part 2 sets out the application of the new copyright term provisions and how they apply to existing matters (including some examples).

New subpart 2 of Part 2 sets out the application of the new performers’ rights provisions and how they apply to existing matters.

Part 3Amendments to Customs and Excise Act 1996

Part 3 amends the Customs and Excise Act 1996.

Clause 47 amends section 119 to allow a person to apply for a Customs ruling on the application of any provision of Schedule 2, which concerns the calculation of the Customs value of goods.

Clause 48 amends section 120 to allow the chief executive to make a ruling in respect of the application of any provision of Schedule 2.

Clause 49 amends section 122 to prescribe the effect of the ruling.

Part 4Amendments to Dairy Industry Restructuring Act 2001

Part 4 amends the Dairy Industry Restructuring Act 2001.

Clause 51 amends section 5, which is the Act’s interpretation provision. The amendments relate to the new tariff-rate quotas for exports to the United States of dairy products under the Agreement.

Clause 52 inserts new section 5A to give effect to a new schedule for the Act for transitional, savings, and related provisions.

Clauses 53 and 54 amend sections 26 and 27A to extend the export licensing regime for dairy products provided by the Act to cover exports to the United States of dairy products under the new tariff-rate quotas under the Agreement.

Clause 55 and Schedule 3 insert new Schedule 1, which contains transitional, savings, and related provisions.

Clause 56 amends Schedule 5A to insert details of the new tariff-rate quotas for exports to the United States of dairy products under the Agreement.

Clause 57 amends Schedule 5B in relation to the allocation of export licences for the export of organic butter under the new tariff-rate quotas for exports to the United States under the Agreement.

Part 5Amendment to Hazardous Substances and New Organisms Act 1996

Part 5 amends the Hazardous Substances and New Organisms Act 1996.

Clause 59 amends section 59 to require the Environmental Protection Authority to extend the period for submissions on publicly notified applications where that is appropriate for giving effect to Article 8.7.14 of the Agreement (which relates to periods allowed for comments on proposals).

Part 6Amendments to Legislation Act 2012

Part 6 amends the Legislation Act 2012.

Clause 61 amends section 3, which states the Act’s purposes. A new section 3(ea) is inserted, to reflect that new Part 2A (inserted by clause 64) provides for the publishing, to help meet international transparency obligations, of copies of and links to certain subordinate legislation.

Clause 62 amends section 4, which contains definitions. The amendments ensure the definitions of legislative instrument and reprint relate only to instruments published under Part 2.

Clause 63 amends section 13, which relates to complying with a requirement to publish or notify in the Gazette by publishing and notifying under Part 2. The amendments ensure references to publication relate only to publication under Part 2.

Clause 64 inserts a new Part 2A, on publishing, for international transparency, of copies of and links to certain subordinate legislation.

The Part contains new sections 36A to 36G.

Purpose, overview, and definitions

New section 36A states the Part’s purpose. That purpose is to help New Zealand meet its international transparency obligations. Those obligations, as defined by new section 36C(2), are obligations under paragraph 5 of Article 26.2 (publication) of Chapter 26 (transparency and anti-corruption) of the Agreement.

New section 36B is an overview of, and only a general guide to, the Part.

The Part applies to instruments if—

  • they are made under an enactment by a Minister of the Crown or a central government entity, and have a significant legislative effect; and

  • they are not published (under Part 2) as, or as if they were, legislative instruments; and

  • publication under the Part of copies of them, and links to them, would help New Zealand meet its international transparency obligations.

The Part—

  • requires copies of the instruments to be published on the administrator’s website, if no other enactment requires that; and

  • requires to be in or with the copies, as so published, all the details necessary or desirable for meeting all applicable international transparency obligations; and

  • requires links to them, as so published, to be forwarded to the Chief Parliamentary Counsel, and published on the legislation website.

New section 36C defines terms, including instrument.

New section 36C(1) ensures that an instrument, in the Part, means an instrument—

  • that is made under an enactment by a Minister of the Crown or central government entity; and

  • that has, or a portion of which has, under sections 37 to 40, a significant legislative effect; and

  • that is related to international transparency obligations (because the publishing under the Part of copies of and links to the instrument would help meet those obligations); and

  • that is not, and is not an instrument published (for example, under section 14) as if it were, a legislative instrument.

Legislative instruments (and those published as if they were legislative instruments) are excluded because—

  • they are required to be, or are in fact, published in full in the legislative instruments series on the legislation website; and

  • they are forwarded without delay to the Chief Parliamentary Counsel under sections 10 and 14 of the Legislation Act 2012; and

  • legislative drafting and publication practice requirements for these excluded instruments (see the PCO’s functions under sections 59(1)(b) and (g) and (2)(c) of that Act) ensure or will ensure that they contain all information necessary or desirable for meeting all applicable international transparency obligations.

New section 36C(2) defines a central government entity as any of the following:

  • a government department named in Schedule 1 of the State Sector Act 1988, including any departmental agency that, under section 27A and Schedule 1A of that Act, is part of that department:

  • a Crown entity (as defined in section 7(1) of the Crown Entities Act 2004, but excluding a school board of trustees and a tertiary education institution):

  • the Reserve Bank of New Zealand:

  • any other instrument of the Crown prescribed, for the purposes of the definition, by an order made under new section 36C(3).

New section 36C(2) also defines other terms (including administrator, administrator’s website, details, legislation website, and links).

Duty to publish and make available copies on administrator’s website

New section 36D applies to an instrument—

  • made after the commencement of Part 6; and

  • unless an enactment other than new section 36D requires a copy of the instrument to be published and made available on the administrator’s website.

New section 36D requires the administrator to ensure that a copy of the instrument is as soon as practicable published and made available on the administrator’s website.

Duty to ensure details are in or with copies as on administrator’s website

New section 36E applies to an instrument—

  • made after the commencement of Part 6; and

  • a copy of which is published and made available on the administrator’s website.

New section 36E requires the administrator to ensure that the instrument’s details are in or with a copy of the instrument as published and made available on the administrator’s website.

However, details of an instrument are taken to be in or with a copy of the instrument as published and made available on the administrator’s website (new section 36E(3)) if—

  • the instrument amends (without also replacing wholly) a principal instrument; and

  • the details relate to the amendments the instrument makes to the principal instrument; and

  • the details are in or with a compilation of the principal instrument published and made available on the administrator’s website.

The instrument’s details, for an instrument at any time, means (new section 36C(2)) all information necessary or desirable for meeting, for that instrument at that time, all applicable international transparency obligations. Examples of that information therefore are, or may be, explanations of the purpose of, and rationale for, the instrument.

New section 36E(4) requires the Chief Parliamentary Counsel to give all or any administrators, and ensure there is or are in force for all instruments, a direction or directions setting out, in general terms, the nature of their details. New section 36E(5) relates to the availability, and disallowance, of administrative directions given under new section 36E.

New section 36E(6) obliges the administrator, if required to do so by a document given by the Chief Parliamentary Counsel, to republish the instrument promptly on the administrator’s website in a form that complies with new section 36E.

Links to be forwarded and made available on legislation website

New section 36F applies to an instrument—

  • made after the commencement of Part 6; and

  • a copy of which is published and made available on the administrator’s website.

New section 36F requires the administrator to forward the instrument’s links to the Chief Parliamentary Counsel, without delay and in line with all applicable directions given under the section. Links (as defined in new section 36C(2)) means all information necessary or desirable to enable a user to access, using the legislation website, the instrument as currently published and made available on the administrator’s website.

New section 36F(3) requires the Chief Parliamentary Counsel to give administrators, and ensure there is or are in force for all instruments, a direction or directions setting out, in general terms, the nature of their links and the form and manner in which they are to be forwarded. New section 36F(4) relates to the availability, and disallowance, of administrative directions given under new section 36F.

New section 36G requires the Chief Parliamentary Counsel to ensure that links forwarded under new section 36F are as soon as practicable published and made available on the legislation website.

Functions of Parliamentary Counsel Office

Clause 65(1) amends section 59(1), which states functions of the Parliamentary Counsel Office (the PCO). The amendment inserts new section 59(1)(fa), which recognises the PCO’s new function of arranging for the publication, to help meet international transparency obligations, of details or copies of certain subordinate legislation (as provided in new Part 2A).

Clause 65(2) amends section 59(2)(c), to make clear it covers only instruments that are required by an Act to be published (as legislative instruments) under Part 2 of the Legislation Act 2012.

Part 7Amendments to Overseas Investment Act 2005

Part 7 amends the Overseas Investment Act 2005 to enable obligations under certain free trade agreements to be implemented. The obligations relate to alternative screening thresholds for overseas investments in significant business assets.

Clause 67 inserts new section 8A to give effect to a new schedule of the Act for transitional, savings, and related provisions.

Clause 68 amends section 13, which refers to the threshold of $100 million for overseas investments in significant business assets, to refer also to alternative value thresholds that apply in accordance with regulations made under new section 61A.

Clause 69 inserts new section 61A to enable regulations to be made in order to implement obligations in certain international agreements in respect of certain overseas investments in New Zealand in significant business assets by certain investors. These free trade agreements are listed in new section 61A(1) and can be viewed on the Internet site of the Ministry of Foreign Affairs and Trade (other than the agreement relating to Chinese Taipei, which is on the Internet site of the New Zealand Commerce and Industry Office in Taipei). To avoid doubt, the references to the international agreements listed in new section 61A(1) do not include any amendments to all or any of those agreements. The regulations may provide for alternative value thresholds under section 13 that apply, on terms and conditions (if any), to 1 or more classes of transactions, persons, interests, rights, or assets. New section 61A provides that the regulations may not provide for an alternative value threshold that is higher than the amount provided for in the relevant international agreement, but the text of the regulations may otherwise differ from the text of an agreement.

Clause 70 inserts new Schedule 1AA, which contains transitional and validation provisions.

Part 8Amendments to Patents Act 2013

Part 8 provides for the 3 matters in the Agreement related to patents and pharmaceuticals that are to be implemented by amendments to the Patents Act 2013, as follows:

  • a grace period for public disclosures within 1 year so that, if inventors make their inventions public, they will not lose their ability to be granted a patent in New Zealand if a complete specification is filed within 12 months of the disclosure:

  • extension of patent term if there is unreasonable delay by the Commissioner in granting a patent. Patent office delays will only be counted if the patent has not been granted within 5 years of its filing date, or 3 years from the time the patent applicant requests its examination. Delays attributable to actions of applicants and third parties do not require an extension:

  • extension of patent term if there is unreasonable delay in obtaining marketing approval from Medsafe for a pharmaceutical substance. Delays attributable to actions of applicants and third parties do not require an extension.

Clause 72 provides for the new grace period for public disclosures within 1 year before the filing of a complete specification. The amendments relate to Article 18.38 of the Agreement which, in summary, provides that a Party shall disregard at least information contained in public disclosures used to determine if an invention is novel or has an inventive step, if the public disclosure was made by the patent applicant or by a person that obtained the information directly or indirectly from the patent applicant and occurred within 12 months prior to the date of the filing of the application in the territory of the Party.

Clause 73 inserts a flag to point readers to the new subpart 10A being inserted into Part 3, which deals with the 2 types of extension of patent term.

Clause 74 provides that, if a patent of addition becomes an independent patent under new section 111O(3)(b), the renewal fees are payable from that time, on the same dates, as if the patent had been originally granted as an independent patent.

Clause 75 inserts new subpart 10A into Part 3, which deals with the 2 types of extension of patent term.

New sections 111A and 111B provide for patent terms to be extended if there are Patent Office delays. Applications can be made only if the patent is granted more than 5 years after the date of filing the complete specification and more than 3 years after the date of requesting examination. The new sections relate to Article 18.46 of the Agreement which, in summary, provides for adjustments of the term of the patent to compensate for unreasonable delays in a Party’s issuance of patent, where an unreasonable delay at least includes a delay in the issuance of a patent of more than 5 years from the date of filing of the application in the territory of the Party, or 3 years after a request for examination of the application has been made, whichever is later. There is a regulation-making power in the new sections to prescribe time intervals to be disregarded by the Commissioner of Patents when determining whether there has been an unreasonable delay in the grant of a patent.

New sections 111C to 111I provide for patent terms to be extended if there is unreasonable curtailment of the effective patent term as a result of the medicines marketing approval process in respect of a biologic or a pharmaceutical substance per se. The new sections relate to Article 18.48 of the Agreement which, in summary, provides that, with respect to a pharmaceutical product that is subject to a patent, each Party must make available an adjustment of the patent term to compensate the patent owner for unreasonable curtailment of the effective patent term as a result of the marketing approval process. Three years for small molecule pharmaceuticals and 5 years for biologics are the time periods now specified in the new sections for the purposes of calculating whether there has been “unreasonable curtailment”. In many places, the new sections use the same wording as the Australian Patents Act 1990 and, for example, the intention is that the term “pharmaceutical substance per se” will have the same meaning as in Australian law. See, for example, the Australian Federal Court decisions of Boehringer Ingelheim International GmbH v Commissioner of Patents [2001] FCA 647 and Pharmacia Italia SpA v Mayne Pharma Pty Ltd [2006] FCA 305. The new sections provide that the patent owner must obtain from Medsafe a certificate setting out information regarding the time interval between the date that the application for marketing approval was filed and the date it was granted, and any time periods not attributable to the actions of Medsafe.

New sections 111J to 111O contain general provisions that apply to all extensions of patent term under new subpart 10A.

Clause 76 inserts a flag in the current part of the principal Act that deals with what does not constitute infringement of a patent, to point readers to new section 111I, which is a related provision in new subpart 10A.

Clause 77 inserts transitional provisions into the Patents Act 2013.

Part 9Amendments to Tariff Act 1988

Part 9 amends the Tariff Act 1988 to implement the tariff and transitional safeguard provisions of the Agreement.

Clause 79 amends the definitions in section 2 to include the TPP and provide for countries to be specified as TPP parties.

Clause 80 amends section 3 to provide that duties must be levied, collected, and paid in accordance with emergency action measures.

Clause 81 amends section 7A to provide for the Governor-General to declare that a country that is a party to the Agreement be specified as a TPP party for the purposes of the Tariff Act 1988.

Clauses 82 to 88 relate to transitional safeguard measures. The provisions relate to Article 4.3 (regarding emergency actions under the textiles and apparel chapter) and Articles 6.3 to 6.7 (regarding general transitional safeguard measures).

Clause 82 amends the definitions in section 15A to—

  • include the TPP within the definition of free trade agreement:

  • include new defined terms relating to emergency action investigations and measures and transitional safeguard investigations.

Clause 83 amends section 15B and relates to the introduction of emergency action investigations in relation to textile and apparel goods.

Clause 84 amends section 15C to include references to emergency action investigations and to include a procedural requirement for emergency action investigations.

Clause 85 amends section 15D and sets out the matters the chief executive must consider in an emergency action investigation.

Clause 86 amends section 15F and relates to the imposition of an emergency action measure. It sets out the conditions under which an emergency action measure can be applied.

Clause 87 amends section 15G to make consequential changes to refer to emergency action measures.

Clause 88 amends section 15H to clarify that provisional transitional safeguard measures may not be applied under the Agreement.

Part 10Amendments to the Tariff

Part 10 amends the Tariff. The provisions relate to implementing the Agreement by applying the appropriate Tariff rates to specified TPP parties.

Clause 90 amends note 2 to the Tariff to include the TPP in the list of preferential abbreviations.

Clause 91 amends note 3 to the Tariff to include specified TPP parties as preferential countries in the Tariff.

Part 11Amendments to Trade Marks Act 2002

Part 11 amends the Trade Marks Act 2002.

Clauses 92 to 104 relate to border protection measures. The provisions relate to Articles 18.74 and 18.76 of the Agreement.

Clause 93 amends section 106 to provide for additional damages to be available as a remedy for infringement.

Clause 94 amends section 108 to provide that the remedy in relation to infringing goods that are counterfeit goods must, unless there are exceptional circumstances, be an order that the goods be destroyed or delivered to a person who will destroy them.

Clause 95 amends the definition of certain border protection terms in section 135—

  • to clarify that the border protection measures apply to both imports and exports:

  • to clarify how goods for private and domestic use are described:

  • to introduce a new defined term of counterfeit goods (for which different remedies apply).

Clause 96 inserts new sections 135A and 135B. The new provisions introduce a power for Customs to detain goods ex officio if they have reasonable cause to suspect that goods may bear an infringing sign. In summary,—

  • new section 135A includes the power to detain goods:

  • new section 135B relates to the release of goods.

Clauses 97, 99, and 102 amend sections 142, 149, and 153 to clarify how goods for private and domestic use are described.

Clauses 98 to 102 amend sections 143, 149, 150, 151, and 153 so that those sections apply to goods in the control of the Customs.

Clause 103 amends section 154—

  • to clarify how goods for private and domestic use are described:

  • to provide that the remedy in relation to counterfeit goods must, unless there are exceptional circumstances, be an order that the goods be destroyed or delivered to a person who will destroy them:

  • so that it applies to goods in the control of the Customs.

Clause 104 amends section 157 to extend the protection provisions to the new detention powers in new sections 135A and 135B.

Part 12Amendments to Wine Regulations 2006

Part 12 amends the Wine Regulations 2006.

Clause 106 inserts new regulation 8A to give effect to paragraph 19 of Annex 8-A of Chapter 8 of the Agreement (as modified for New Zealand) relating to the labelling of grape ice wine.

Clause 107 makes consequential amendments.