Reprint as at 1 April 2021
Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.
Note 4 at the end of this reprint provides a list of the amendments incorporated.
This Act is administered by the Ministry of Business, Innovation, and Employment.
The Parliament of New Zealand enacts as follows:
This Act is the COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020.
This Act comes into force on the day after the date on which it receives the Royal assent.
(1)
This Act provides processes for an entity affected by COVID-19—
to, in some circumstances, use electronic means for doing things if its constitution or rules would otherwise prevent this; and
to modify certain requirements or restrictions in its constitution or rules if it is not reasonably practicable to comply with them.
(2)
The processes are in Part 2.
(3)
Modifications made to constitutions or rules under section 13 are temporary. However, an entity may make lasting amendments to its constitution or rules through electronic voting (see sections 10 and 11).
(4)
This Act also provides, in Part 3,—
powers for responsible Registrars and Ministers to exempt classes of persons from certain provisions of specified enactments; and
powers for the Chief Judge of the Māori Land Court to grant relief from compliance with terms of certain orders made under Te Ture Whenua Maori Act 1993.
(5)
This section is only a guide to the general scheme and effect of this Act.
In this Act, entity means any of the following:
assembled owners under Part 9 of Te Ture Whenua Maori Act 1993:
a building society:
a charitable trust board:
a company:
a credit union:
a firm:
a friendly society:
an incorporated society:
an industrial and provident society:
a limited partnership:
a mandated iwi organisation:
a Māori association:
a Māori land trust:
a Māori incorporation:
a body corporate or the trustees of a trust appointed to administer a Māori reservation:
a Māori Trust Board.
For the purposes of Part 2, entity also includes any post-settlement governance entity of a type not listed in subsection (1).
See section 7 for definitions.
In this Act, specified Act means any of the following Acts:
the Building Societies Act 1965:
the Charitable Trusts Act 1957:
the Companies Act 1993:
the Friendly Societies and Credit Unions Act 1982:
the Incorporated Societies Act 1908:
the Industrial and Provident Societies Act 1908:
the Limited Partnerships Act 2008:
the Maori Community Development Act 1962:
the Maori Fisheries Act 2004:
the Maori Trust Boards Act 1955:
the Partnership Law Act 2019:
Te Ture Whenua Maori Act 1993.
This section defines,—
for the purposes of Part 2, in relation to an entity, the responsible Registrar or agency:
for the purposes of Part 3, in relation to specified enactments, the responsible Registrar or Minister.
Responsible Registrar or agency,—
if the entity is listed in any of section 4(1)(b) to (e) or (g) to (j), means the Registrar who acts under the specified Act under which the entity is registered or incorporated:
if the entity is listed in any of section 4(1)(a) or (m) to (o), means the Chief Registrar of the Māori Land Court:
if the entity is a Māori association or a Māori Trust Board, means the chief executive of Te Puni Kōkiri:
if the entity is a mandated iwi organisation, means Te Ohu Kai Moana Trustee Limited.
For the purposes of Part 2, some entities have more than 1 responsible Registrar or agency.
There is no responsible Registrar or agency in relation to—
a firm (within the meaning of the Partnership Law Act 2019):
a post-settlement governance entity of a type not listed in section 4(1).
For the purposes of the powers to grant exemptions under Part 3 in relation to the specified Acts (and the specified enactments made under them), responsible Registrar or Minister means,—
in relation to each specified Act listed in section 5(a) to (g), the Registrar as defined in the specified Act:
in relation to the Partnership Law Act 2019, the Registrar of Companies:
in relation to the Maori Community Development Act 1962, the Maori Trust Boards Act 1955, and Te Ture Whenua Maori Act 1993, the Minister for Māori Development:
in relation to the Maori Fisheries Act 2004, the Minister of Fisheries.
In this Act, unless the context otherwise requires,—
building society has the same meaning as in section 2(1) of the Building Societies Act 1965
charitable trust board means any trustees or society incorporated as a board under Part 2 of the Charitable Trusts Act 1957
commencement date means the commencement date of this Act
company has the same meaning as in section 2(1) of the Companies Act 1993
constitution or rules means,—
in the case of a company, the constitution of the company; and
in the case of any other entity, the documents or instruments constituting or defining the constitution or rules of the entity
credit union has the same meaning as in section 2 of the Friendly Societies and Credit Unions Act 1982
electronic has the same meaning as in section 209 of the Contract and Commercial Law Act 2017
electronic communication has the same meaning as in section 209 of the Contract and Commercial Law Act 2017
entity has the meaning set out in section 4
firm means a firm within the meaning of the Partnership Law Act 2019
friendly society means a society that—
is of the kind specified in section 11(1)(a) of the Friendly Societies and Credit Unions Act 1982; and
is registered under Part 2 of that Act
further period, in relation to a matter, means a period (if any) that starts on 1 December 2020 and ends on the close of the day specified in an Order in Council made under section 42 that relates to the matter
give, in relation to information, includes—
to send, post, serve, lodge, provide, or present; and
any of the other actions specified in section 224(4) of the Contract and Commercial Law Act 2017
governing body means,—
in relation to a company, the board:
in relation to a firm, the partners:
in relation to a limited partnership, the general partners:
in relation to a body corporate or unincorporate, other than a company, firm, or limited partnership, the committee or other governing body by whatever name called
governing officer means,—
in relation to a company, any person occupying the position of a director of the company by whatever name called:
in relation to a firm, any partner:
in relation to a limited partnership, any general partner:
in relation to a body corporate or unincorporate, other than a company, firm, or limited partnership, any person occupying a position in the body that is comparable with that of a director of a company
incorporated society means a society incorporated under the Incorporated Societies Act 1908
industrial and provident society means a society registered under the Industrial and Provident Societies Act 1908
information includes notices, communications, and documents
initial period means the period from the commencement date until 30 November 2020
joint Ministers means the Minister of Finance and the Minister of Commerce and Consumer Affairs, acting jointly
limited partnership means a limited partnership that is registered under section 51 of the Limited Partnerships Act 2008
mandated iwi organisation has the same meaning as in section 5 of the Maori Fisheries Act 2004
Māori association has the same meaning as in section 2 of the Maori Community Development Act 1962
Māori incorporation means a Māori incorporation under Part 13 of Te Ture Whenua Maori Act 1993
Māori land trust means a trust constituted under Part 12 of Te Ture Whenua Maori Act 1993
Māori reservation means a Māori reservation set apart under section 338 of Te Ture Whenua Maori Act 1993 or the corresponding provisions of any former Act
Māori Trust Board has the same meaning as in section 2 of the Maori Trust Boards Act 1955
modify, in relation to a requirement or restriction, includes disapplying or suspending the requirement or restriction
post-settlement governance entity means an entity established by an iwi or a hapū or any other group of Māori and approved by the Crown for the purpose of receiving redress in the settlement of the historical Treaty of Waitangi claims of that iwi or hapū or other group
Registrar of Companies means the Registrar of Companies appointed in accordance with section 357(1) of the Companies Act 1993
relevant period,—
in Part 2, in relation to an entity, means the period described in section 9(a) and (b):
in Part 3, in relation to powers to grant exemptions and relief, means the period described in section 25(a) and (b)
responsible Registrar or agency has the meaning set out in section 6
responsible Registrar or Minister has the meaning set out in section 6
specified Act has the meaning set out in section 5
specified enactment—
means a specified Act and any enactments made under the specified Act; and
in the case of the Maori Fisheries Act 2004, includes rules made by Te Ohu Kai Moana Trustee Limited under section 54(1)(b) of that Act.
This Act binds the Crown.
Each of sections 10 and 13 applies in relation to an entity—
until the close of 30 November 2020; and
if its application is extended by an Order in Council made under section 42 in relation to the type of entity, for the further period.
Section 10: repealed, on 1 April 2021, by section 43(1).
No vote may be taken or received (wholly or partly) by electronic means in reliance on section 10, and no other part of a voting process may be done in reliance on that section, unless a majority of the entity’s governing officers (or the entity’s governing officer, if it has only 1)—
believe, on reasonable grounds, that the provisions in the entity’s constitution or rules that relate to the integrity of the voting process—
are or will be substantively complied with; and
will not be substantively compromised as a consequence of the vote; and
sign a certificate certifying as to their beliefs under paragraph (a) and recording the reasons why, and keep that certificate with the entity’s records.
In forming their beliefs under subsection (1)(a), the matters to which the governing officers must have regard include—
whether, if a vote or other part of a voting process is done (wholly or partly) by electronic means, all persons who are entitled to vote will have a reasonable opportunity to vote and participate in the process; and
whether any person who is entitled to vote may suffer a material detriment.
The conditions that permit a matter to be done in reliance on section 10 are as follows:
to the extent that doing the matter by electronic means relates to—
having information in electronic form (instead of in writing), section 222 of the Contract and Commercial Law Act 2017 must be complied with:
recording information in electronic form (instead of in writing), section 223 of that Act must be complied with:
giving information in electronic form (instead of giving it in writing), section 224 of that Act must be complied with:
an electronic signature (instead of a non-electronic signature), section 226 or 227 of that Act must be complied with:
retaining an electronic form of information (instead of retaining the information in paper or any other non-electronic form), section 229 of that Act must be complied with:
providing or producing information in electronic form (instead of providing or producing the information in paper or any other non-electronic form), section 232 of that Act must be complied with:
providing access to information in electronic form (instead of providing access to the information in paper or any other non-electronic form), section 234 of that Act must be complied with; and
the entity must keep a record of—
the electronic communications used to do the matter (if any); and
the reasons for the belief of the majority of its governing officers referred to in section 10(1)(b) (and section 10(1)(a), if relevant); and
the entity must make reasonable efforts to notify all members and governing officers of the matter for which section 10 has been, or will be, relied on; and
the entity must give to the responsible Registrar or agency a written notice that—
identifies the matter for which section 10 has been, or will be, relied on; and
contains, or is accompanied by, a copy of the record referred to in paragraph (b)(ii).
For the purposes of meeting any conditions in subsection (1)(a) to (c), an entity may treat a person as having consented to use, provide, accept, or receive information and electronic signatures by email if—
the person has previously notified the entity of an electronic address that the person uses; and
the entity has no reason to believe that the address is incorrect; and
the entity believes, on reasonable grounds, that the use of email to give the information or signature will not materially disadvantage the person; and
the person has not expressly told the entity that the person wants to use, provide, accept, or receive the particular information or signature by some means other than by email.
If subsection (1)(c) or (d) is not complied with before the matter is done, it must be complied with as soon as reasonably practicable after the matter is done.
If there is more than 1 responsible Registrar or agency, the entity must give the notice under subsection (1)(d) to each of them.
Subsection (1)(d) does not apply to a firm (within the meaning of the Partnership Law Act 2019) or to a post-settlement governance entity of a type not listed in section 4(1).
Section 13: repealed, on 1 April 2021, by section 43(1).
Section 13 allows modifications relating to the following:
calling or holding meetings (including procedures at meetings):
a method or form of voting:
giving or receiving information:
making or keeping new records:
a method or form of dispute resolution:
a method or form of disciplinary procedure:
a waiver, suspension, deferral, or reduction of fees or other amounts payable by members of the entity to the entity:
a deferral of auditing, assurance, or financial reporting or review requirements:
use of electronic means to do any matter listed in section 10(2):
other procedural or administrative processes.
However, the list in subsection (1) is subject to regulations made under section 41(1)(a)(i) or (iii) (which may restrict, or add to, the list).
If there is any inconsistency between this section and section 15(a) to (j), that section prevails.
Section 13 does not allow modifications that relate to the following:
the purpose or objects of the entity:
the powers of the entity (other than a procedural or an administrative power):
the sale, transfer, or other disposition of real or personal property:
voting rights or rights to a dividend or other distribution:
the number, or need, for a quorum:
rights of access to courts, tribunals, or arbitral tribunals:
the duties of the governing body or governing officers (other than a procedural or an administrative duty):
fees or other payments (other than a waiver, suspension, deferral, or reduction of fees or other amounts payable by members of the entity to the entity):
an alteration or addition made to the constitution or rules by an order of a court:
any matter if the modification to that matter has a material detrimental effect (direct or indirect) on the substantive rights or powers of any creditor or other person:
any matter that is prescribed by regulations made under section 41(1)(a)(ii):
any other matter that is not listed in section 14.
This section applies to the extent that a modification made under section 13 relates to either of the following:
omitting to do a required act by a due date that is before the date on which the modification is made:
an act done in an attempt to do an act required to be done by a due date that is before the date on which the modification is made.
The modification is treated as validly made on or immediately before the due date if—
the due date is no earlier than 21 March 2020; and
the modification is made by the entity no later than 3 months after the commencement date.
To the extent that the modification relates to a due date earlier than 21 March 2020, the modification is of no effect.
A modification made under section 13 in the initial period must have an express expiry date that is no later than the end of the initial period.
However, subsection (3) applies if—
a modification made by an entity is in force immediately before the end of the initial period; and
an Order in Council is made under section 42(1)(b) for a further period in relation to the type of entity.
The modification does not expire at the end of the initial period but is treated as having an expiry date that is the end of the further period.
Subsection (3) does not apply if the modification expressly states that it will not apply in any further period.
A modification made by an entity under section 13 in the further period (if any) must have an express expiry date that is no later than the end of the further period.
An entity that relies on section 13 must do all of the following:
keep a written record of—
the notice of the modification; and
its reasons as to how the requirements of section 13 were satisfied in respect of the modification; and
the reasons for the beliefs of the majority of its governing officers referred to in section 13(2)(c), (e), and (f); and
as soon as practicable after making the modification, make reasonable efforts to notify all members and governing officers of the entity of the modification; and
as soon as practicable after making the modification, give to the responsible Registrar or agency a written notice that—
states that the entity is relying on section 13 of this Act; and
contains, or is accompanied by, a copy of the written record referred to in paragraph (a); and
contains, or is accompanied by, a certificate by a governing officer of the entity certifying that, in making the modification, all requirements of this Act were complied with.
If there is more than 1 responsible Registrar or agency, the entity must give the notice under subsection (1)(c) to each of them.
Subsection (1)(c) does not apply to a firm (within the meaning of the Partnership Law Act 2019) or to a post-settlement governance entity of a type not listed in section 4(1).
This section applies if,—
because of a restriction or requirement in an entity’s constitution or rules, 1 or more matters in subsection (2) may not be done by electronic means, or a majority of an entity’s governing officers, in good faith, believe that there is uncertainty as to whether the matter may be done by electronic means; and
the majority of the entity’s governing officers believe, in good faith, that it is not reasonably practicable to do the matter by non-electronic means.
The matters relate to a modification under section 13 and are—
making and signing the written notice of modification:
recording the beliefs under section 13(2)(c), (e), and (f):
compliance with any condition in section 18.
If this section applies,—
the matter may be done, wholly or partly, by electronic means; and
if done by electronic means, the matter has legal effect to the same extent as if it had been done by non-electronic means in accordance with the constitution or rules.
However, subsection (3) is subject to the conditions in section 12(1)(a) and (b)(i) being complied with (and section 12 applies for this purpose with the necessary modifications).
In order to do the matter by electronic means, it is not necessary to comply with a paper-based format requirement within the meaning of section 225 of the Contract and Commercial Law Act 2017.
(6)
This section does not affect any legal requirement to the extent that the requirement relates to the content of information.
A vote may not be taken or received (wholly or partly) in reliance on a modification made under section 13 to a method or form of voting if the vote relates to any of the following matters (and, to the extent they are purportedly voted on in reliance on the modification, the vote is of no effect):
an amendment to an entity’s constitution or rules (other than an amendment described in subsection (2)); or
any matter listed in section 15.
Subsection (1)(a) does not prevent a vote being taken or received (wholly or partly) in reliance on a modification made under section 13 to a method or form of voting if the amendment expires in accordance with section 17 (which applies with all necessary modifications as if the amendment were a modification referred to in that section).
An entity that desires to vary a modification made under section 13 may do so only under that section (with this Part applying with all necessary modifications).
A modification made by an entity under section 13 may be revoked by a notice in writing that is signed by the majority of the entity’s governing officers (or signed by its governing officer, if it has only 1).
An entity must comply with section 18 (with all necessary modifications), other than section 18(1)(a)(ii) and (iii) and (c)(i), in relation to a revocation.
This section applies when a responsible Registrar or agency receives a written notice under this Part.
A Registrar receiving the notice—
must arrange for particulars about the notice (including particulars about information contained in, or accompanying, the notice) to be registered on the relevant register; and
may otherwise make the particulars available to the public in any way the Registrar thinks fit (for example, by publishing them on an Internet site).
An agency receiving the notice must make particulars about the notice (including particulars about information contained in, or accompanying, the notice) available to the public, but may do so in any way the agency thinks fit (for example, by publishing them on an Internet site).
On and from the end of the relevant period, the obligations that an entity has under other enactments in relation to the keeping of entity records apply to all written records and electronic communications made by or under this Part.
The purpose of this Part is to enable the modification or relaxation of described procedural or administrative matters in specified enactments and certain orders that—
are unduly onerous or burdensome because of the effects of COVID-19; or
may not be reasonably capable of being complied with, or complied with fully, because of the effects of COVID-19.
Every power to grant exemptions under section 26, and the power under section 30, may only be exercised—
if extended by an Order in Council made under section 42, during the further period.
Section 26: repealed, on 1 April 2021, by section 43(1).
A responsible Registrar or Minister must not grant an exemption under this Part unless—
the responsible Registrar or Minister is satisfied that—
granting the exemption is necessary or desirable for the purpose of this Part as set out in section 24; and
the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption; and
the exemption is the most appropriate way of addressing those matters at the time; and
the responsible Registrar or Minister has complied with section 28.
Additionally, if the exemption relates to rules made by Te Ohu Kai Moana Trustee Limited under section 54 of the Maori Fisheries Act 2004, the Minister of Fisheries (as the responsible Registrar or Minister) must have consulted Te Ohu Kai Moana Trustee Limited on the proposed exemption.
For the purposes of section 27(1)(b), the responsible Registrar or Minister must—
make available a document referred to in subsection (2) to—
the persons or representatives of persons that the responsible Registrar or Minister considers appropriate given the proposed effect of the exemption; or
the public generally; and
invite those persons to make written comments on the document; and
give those persons 3 working days from the making of the invitation within which to make their comments to the responsible Registrar or Minister (or any longer time allowed by the responsible Registrar or Minister); and
have regard to those comments that are received within the 3-working-day period (or within the longer time allowed by the responsible Registrar or Minister).
The document must include—
an explanation of what the exemption is intended to achieve; and
a description of the proposed effect of the exemption; and
an explanation of why the responsible Registrar or Minister considers that the exemption is necessary or desirable for the purpose of this Part and why the exemption is appropriate.
Subsection (1) and section 27(1)(b) do not apply, or do not apply to a person or class of persons, if the responsible Registrar or Minister is satisfied that—
engagement is not reasonably practical in the circumstances; or
the urgency of the situation requires that the exemption be made as soon as practicable without that engagement; or
the exemption benefits the persons referred to in subsection (1)(a)(i) and does not materially detrimentally affect any person; or
in the circumstances, engagement is clearly disproportionate to the nature, size, significance, and effect of the exemption.
If subsection (3) is relied on, the responsible Registrar or Minister’s reasons for relying on that subsection must be published together with the exemption.
For the purposes of this Act, the provisions of specified enactments for which exemptions may be granted are provisions that relate to any of the following matters:
rights to inspect or access information or records:
a method or form of dispute resolution (excluding rights of access to courts, tribunals, or arbitral tribunals):
a method or form of disciplinary procedures:
auditing, assurance, or financial reporting or review requirements:
any other matter specified by regulations made under section 41(1)(b)(i).
However, the list in subsection (1) is subject to regulations made under section 41(1)(b)(ii) (which may restrict the list) and subsections (3) to (5).
No exemption may be granted that results in a process for dispute resolution or a disciplinary procedure that is contrary to the rules of natural justice.
No exemption may dilute voting rights.
No exemption may dilute the number or need for a quorum.
Section 30: repealed, on 1 April 2021, by section 43(1).
A responsible Registrar or Minister may grant an exemption under this Part in respect of past acts or omissions.
However, no exemption may relate to an act or omission that occurred before 21 March 2020.
An exemption granted under this Part in relation to a requirement that relates to a period of time (for example, a requirement to prepare and lodge financial statements for an accounting period) may, if the responsible Registrar or Minister thinks fit, apply to a period that commenced before the exemption is granted (including a period that ended before the exemption is granted) if—
the exemption is granted before the requirement would otherwise need to be complied with under the specified enactment; or
section 31 applies.
An exemption granted in the initial period may continue in force until the end of the initial period (and, at that point, the exemption must be treated as having been revoked unless it is sooner revoked or expires, or subsection (3) applies).
Subsection (3) applies if—
an exemption is in force immediately before the end of the initial period; and
an Order in Council is made under section 42 for a further period in relation to section 26 and the specified enactment to which the exemption relates.
The exemption is not revoked at the close of the initial period but continues in force until the end of the further period (unless it is sooner revoked or expires).
Subsection (3) does not apply if the exemption expressly states that it will not apply in any further period.
An exemption granted in the further period (if any) may continue in force until the end of the further period (and, at that point, the exemption must be treated as having been revoked unless it is sooner revoked or expires).
Compare: 2013 No 69 s 558
The breach of a term or condition of an exemption granted under this Part is a breach of the provision to which the exemption relates (unless the terms of the exemption otherwise provide).
Compare: 2013 No 69 s 559
The responsible Registrar or Minister must, before granting an exemption, consider—
whether the exemption should be a legislative instrument for the purposes of the Legislation Act 2012 that is drafted by the Parliamentary Counsel Office (PCO) under that Act; and
whether, accordingly, a notice should be given under section 36.
In performing that duty, the responsible Registrar or Minister must have regard to—
the nature of the exemption; and
how significant the exemption is; and
the number and nature of the persons to whom the exemption will apply; and
the consequences of a failure to comply with a condition of the exemption; and
the complexity of the exemption; and
the purposes of the Legislation Act 2012; and
any other relevant matters.
An exemption under this Part is a legislative instrument for the purposes of the Legislation Act 2012 (and must be drafted by the PCO) only if, before the exemption is issued, the responsible Registrar or Minister notifies the Chief Parliamentary Counsel in writing that the exemption will be a legislative instrument.
All other exemptions under this Part are not legislative instruments.
Every exemption under this Part—
is a disallowable instrument for the purposes of the Legislation Act 2012; and
must be presented to the House of Representatives under section 41 of that Act.
This section applies to exemptions granted under this Part that are not legislative instruments (see section 36).
The exemption must be published on an Internet site maintained by or on behalf of the relevant Registrar or the government department that administers the specified enactment to which the exemption relates.
A responsible Registrar or Minister’s reasons for granting an exemption under this Part (including why the exemption is appropriate) must be published together with the exemption.
Compare: 2013 No 69 s 571(5)
A responsible Registrar or Minister may vary or revoke an exemption in the same way as the responsible Registrar or Minister may grant the exemption (with the provisions relating to the granting of the exemption applying with all necessary modifications).
However, a notice must be given under section 36 for a variation or revocation of an exemption that is a legislative instrument.
Compare: 2013 No 69 s 572
Section 41: repealed, on 1 April 2021, by section 43(1).
Section 42: repealed, on 1 April 2021, by section 43(1).
Sections 10, 13, 26, 30, 41, and 42 are repealed on 1 April 2021.
The rest of this Act is repealed on the close of 31 May 2022.
This is a reprint of the COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020 that incorporates all the amendments to that Act as at the date of the last amendment to it.
Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.
Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.
COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020 (2020 No 14): section 43(1)