Overseas Investment Act 2005

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6 Interpretation

(1)

In this Act, unless the context requires otherwise,—

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

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

acquisition includes obtaining ownership or coming into possession by any means

associate has the meaning set out in section 8

associated land has the meaning set out in section 8

bed means—

(a)

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

(b)

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

(c)

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

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

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

(a)

an overseas investment in sensitive land:

(b)

an overseas investment in significant business assets:

(c)

an overseas investment in fishing quota

Commission means the Overseas Investment Commission

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

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

court means the High Court

document means any record of information; and includes—

(a)

anything on which there is writing or any image; and

(b)

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

(c)

material subsequently derived from information recorded by that means

exempted interest means an easement or profit à prendre

farm land means land used exclusively or principally for agricultural, horticultural, or pastoral purposes, or for the keeping of bees, poultry, or livestock

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

foreshore or seabed

(a)

means the marine area that is bounded,—

(i)

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

(ii)

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

(b)

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

(c)

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

(d)

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

(e)

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

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

give effect to an overseas investment

(a)

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

(b)

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

governing body means,—

(a)

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

(b)

in relation to a trust, the trustees:

(c)

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

(d)

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

(i)

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

(ii)

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

guidelines means guidelines issued by the regulator under section 36

historic heritage

(a)

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

(i)

archaeological:

(ii)

architectural:

(iii)

cultural:

(iv)

historic:

(v)

scientific:

(vi)

technological; and

(b)

includes—

(i)

historic sites, structures, places, and areas; and

(ii)

archaeological sites; and

(iii)

sites of significance to Maori, including wahi tapu; and

(iv)

surroundings associated with the natural and physical resources

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

interest includes a legal or equitable interest

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

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

LINZ means Land Information New Zealand

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

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

non-urban land means—

(a)

farm land; and

(b)

any land other than land that is both—

(i)

in an urban area; and

(ii)

used for commercial, industrial, or residential purposes

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

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

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

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

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

overseas person has the meaning set out in section 7

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

regulations means regulations made under this Act

regulator has the meaning set out in section 30

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

relevant Minister or Ministers means,—

(a)

in the case of a business decision, the Minister:

(b)

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

(c)

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

(d)

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

relevant overseas person has the meaning set out in section 15

Reserve Bank means the Reserve Bank of New Zealand

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

security

(a)

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

(b)

includes specifically—

(i)

a share in a company or other body corporate; and

(ii)

a unit in a unit trust; and

(iii)

an interest in a partnership or unincorporated joint venture; and

(iv)

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

(c)

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

(d)

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

(e)

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

(f)

excludes an interest or right that is—

(i)

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

(ii)

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

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

transaction includes—

(a)

the sale or transfer of property or securities; and

(b)

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

(c)

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

(d)

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

working day means a day of the week other than—

(a)

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

(ab)

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

(b)

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

(2)

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

(a)

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

(b)

is in one of the following categories:

(i)

is domiciled in New Zealand; or

(ii)

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

(3)

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

(4)

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

(a)

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

(b)

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

(c)

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

(5)

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

(a)

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

(b)

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

(c)

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

(6)

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

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

Section 6(2)(a): substituted, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).