Overseas Investment Amendment Act 2021

10 Section 17 replaced (Factors for assessing benefit of overseas investments in sensitive land)

Replace section 17 with:

17 Factors for assessing benefit of overseas investments in sensitive land
What are the factors

(1)

The factors for assessing the benefit of overseas investments in sensitive land are whether the overseas investment will, or is likely to,—

(a)

result in economic benefits for New Zealand (for example, the creation or retention of jobs, the introduction of technology or business skills, increases in productivity or export receipts, or a reduced risk of illiquid assets):

(b)

result in benefits to the natural environment (for example, protection of indigenous flora and fauna or erosion control):

(c)

result in continued or enhanced access by the public, or any section of the public, within or over the sensitive land or the features giving rise to the sensitivity (for example, access for recreational purposes or for the purposes of undertaking stewardship of, or exercising kaitiakitanga in relation to, historic heritage or the natural environment):

(d)

result in continued or enhanced protection of historic heritage in or on the relevant land (for example, agreement to execute a heritage covenant (or comply with existing covenants), agreement to support entry to wāhi tūpuna, wāhi tapu, or wāhi tapu areas on the New Zealand Heritage List/ Rārangi Kōrero, taking other actions under the Heritage New Zealand Pouhere Taonga Act 2014 to recognise or protect heritage values, or agreement to land being set apart as a Māori reservation):

(e)

give effect to or advance a significant Government policy:

(f)

involve oversight of, or participation in, the overseas investment or any relevant overseas person by persons who are not overseas persons:

(g)

result in other consequential benefits to New Zealand.

How factors must be considered

(2)

For the purposes of section 16A(1)(a) and (b) (including where section 16A(3) is being applied), the relevant Ministers—

(a)

must consider all the factors in subsection (1) to determine which factor or factors are relevant to the overseas investment; and

(b)

must determine whether the criteria in section 16A(1)(a) and (b) (including where section 16A(3) is being applied) are met after having regard to those relevant factors and, in doing so,—

(i)

must deduct from any benefit arising under a factor any directly comparable aspect of the counterfactual, and any negative impact of the overseas investment that is directly comparable, but must stop deducting at zero unless subsection (3) applies:

(ii)

must not deduct from any benefit arising under a factor any non-directly comparable aspect of the counterfactual or any negative impact of the overseas investment that is not directly comparable unless subsection (3) applies:

Examples
Directly comparable

If a company is generating $10 million in export receipts at the time that the overseas investment transaction is entered into and the overseas investment will result in a total of $15 million in export receipts, the net benefit in respect of export receipts under the economic factor is $5 million.

Non-directly comparable

If the overseas investment will result in an increase in jobs, but a decrease in export receipts, as compared with the counterfactual, the decrease in export receipts cannot be deducted from the benefit associated with the increase in jobs.

If an overseas investment will result in the introduction of technology but a decrease in export receipts, the decrease in export receipts must not be deducted from any benefits arising from the introduction of technology.

(iii)

must determine the relative importance to be given to each relevant factor or particular benefit arising under a factor, subject to section 16A(1C).

(3)

If the overseas investment involves the extraction of water for bottling, or other extraction of water in bulk for human consumption,—

(a)

an additional factor is whether the overseas investment will, or is likely to, result in a negative impact on water quality or sustainability; and

(b)

the relevant Ministers must determine the relative importance to be given to this factor and deduct that from any overall benefit to New Zealand that has been determined under section 16A(1)(a).