COVID-19 Response (Management Measures) Legislation Bill

  • enacted

Schedule 4 Ministry of Business, Innovation, and Employment

s 3(1)

Part 1 Contract and Commercial Law Act 2017

1 Amendment to Contract and Commercial Law Act 2017

This Part amends the Contract and Commercial Law Act 2017.

2 New sections 240A to 240E inserted

After section 240, insert:

240A Temporary modification relating to powers of attorney and COVID-19

(1)

Despite section 218(2)(d) and paragraph (e) of Part 3 of Schedule 5, this subpart applies to a deed—

(a)

that creates a power of attorney in connection with a security interest; and

(b)

that is made during the period specified in section 240B.

(2)

In subsection (1), security interest means an interest in property created or provided for by a transaction that, in substance, secures payment or performance of an obligation, without regard to—

(a)

the form of the transaction; and

(b)

the identity of the person who has title to the property that is subject to the security interest.

240B Period for which temporary modification applies

(1)

The modification in section 240A(1)

(a)

applies on and from the day on which this section comes into force; and

(b)

ceases to apply—

(i)

immediately after the expiry of the 6-month period that starts on the day on which this section comes into force; or

(ii)

if an Order in Council is made under section 240C, immediately after the expiry of the period specified in that order.

(2)

Despite subsection (1)(b), if an Order in Council is made under section 240D, the modification ceases to apply on the date appointed in that order.

240C Order in Council may extend application period

(1)

The Governor-General may, by Order in Council made on the recommendation of the Ministers, extend the application period by up to 6 months from the end of the initial period.

(2)

The application period may be extended under this section only once.

(3)

The Ministers must not recommend the making of an order under this section unless the Ministers are satisfied that the extension—

(a)

is necessary or desirable to address the effects of COVID-19; and

(b)

is no longer than is reasonably necessary to address those effects.

(4)

The Ministers’ reasons for making the recommendation (including why the order is necessary or desirable) must be published together with the order.

(5)

An order made under this section must be notified in the Gazette at least 7 days before the end of the initial period.

(6)

An order made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

(7)

In this section and section 240D,—

application period means the period during which the modification in section 240A(1) applies

initial period means the initial 6-month period during which the modification applies in accordance with section 240B(1)(a) and (b)(i)

Ministers means the Minister of Finance and the Minister of Commerce and Consumer Affairs.

240D Order in Council may provide for modification to cease to apply

(1)

The Governor-General may, by Order in Council made on the recommendation of the Ministers, appoint a date (within the initial period or, if an order is made under section 240C, within the further period) on which the modification ceases to apply.

(2)

The Ministers must not recommend the making of an order under this section unless the Ministers are satisfied that the modification is no longer necessary or desirable to address the effects of COVID-19.

(3)

An order made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

240E Repeal of temporary modification provisions

This section and sections 240A to 240D are repealed on the close of 30 November 2022.

Part 2 COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020

3 Amendments to COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020

This Part amends the COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020.

4 Section 3 amended (Overview of Act)

(1)

In section 3(3),—

(a)

after “13”, insert “or 13A; and

(b)

after “10”, insert “, 10A,”.

(2)

After section 3(4), insert:

(4A)

The ability to use the processes in Part 2, and to exercise the powers in Part 3, applied for an initial period and was extended, by Order in Council made under section 42, until the close of 31 March 2021.

(4B)

Amendments to this Act made by the COVID-19 Response (Management Measures) Legislation Act 2021 broadly revive the processes and powers during a period (the initial 2021/22 period) that starts on the amendment date and ends with 30 April 2022 (unless extended for a further period by Order in Council made under section 42B).

5 Section 7 amended (Interpretation)

(1)

In section 7, insert in their appropriate alphabetical order:

amendment date means the day after the date on which the COVID-19 Response (Management Measures) Legislation Act 2021 receives the Royal assent (which is the date on which this definition is inserted)

initial 2021/22 period means the period that starts on the amendment date and ends with 30 April 2022

(2)

In section 7, definition of further period,—

(a)

replace “1 December 2020” with “1 May 2022”; and

(b)

replace “42” with 42B.

6 Section 9 replaced (Sections 10 and 13 apply for relevant period)

Replace section 9 with:

9 Sections 10A and 13A apply for relevant period

Each of sections 10A and 13A applies in relation to an entity—

(a)

for the initial 2021/22 period; and

(b)

if its application is extended by an Order in Council made under section 42B in relation to the type of entity, for the further period.

7 New section 10A inserted (When electronic means permitted despite constitution or rules)

Before section 11, insert:

10A When electronic means permitted despite constitution or rules

(1)

In the relevant period, this section applies in relation to an entity—

(a)

if,—

(i)

because of a restriction or requirement in the entity’s constitution or rules, a matter in subsection (2) may not be done by electronic means, or a majority of the entity’s governing officers, in good faith, believe that there is uncertainty as to whether the matter may be done by electronic means; or

(ii)

the entity’s constitution or rules are silent about whether a matter in subsection (2) may be done by electronic means; and

(b)

if a majority of the entity’s governing officers believe, in good faith, that because of the effects of an outbreak of COVID-19 it is not reasonably practicable to do the matter by non-electronic means.

(2)

The matters are—

(a)

having or recording information in writing:

(b)

calling or holding meetings, including for the purpose of establishing a quorum:

(c)

voting:

(d)

giving or receiving information:

(e)

making or keeping new records:

(f)

providing access to records or information held by or on behalf of the entity:

(g)

signing any instrument:

(h)

retaining any information.

(3)

If this section applies,—

(a)

the matter may be done, wholly or partly, by electronic means; and

(b)

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.

(4)

However, subsection (3)

(a)

is subject to the conditions in section 12 being, or having been, complied with as required by that section; and

(b)

in the case of voting, is subject also to section 11.

(5)

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.

(7)

Nothing in this section prevents section 13A from being used to make modifications to allow things to be done by electronic means.

8 Section 11 amended (Electronic voting)

In section 11(1), replace “section 10” with section 10A.

9 Section 12 amended (Conditions)

(1)

In section 12(1), replace “on section 10”, with “on section 10A.

(2)

In section 12(1)(b)(ii), replace “section 10(1)(b) (and section 10(1)(a)” with section 10A(1)(b) (and section 10A(1)(a).

(3)

In section 12(1)(c) and (d)(i), replace “section 10” with section 10A.

10 New section 13A inserted (Process for modifying certain requirements or restrictions in constitution or rules)

Before section 14, insert:

13A Process for modifying certain requirements or restrictions in constitution or rules

(1)

In the relevant period, this section applies to an entity if—

(a)

the entity’s constitution or rules contain a provision that (directly or indirectly)—

(i)

requires a person to comply with a requirement; or

(ii)

restricts the manner or form in which a person may exercise a power or right, or perform a function, that the person wishes to exercise or perform; and

(b)

in the case of paragraph (a)(i), the time for complying last date by which the person must comply with the requirement ends falls during the period that starts on the amendment date and ends when the relevant period ends; and

(c)

in the case of paragraph (a)(ii), the time at which the person wishes to exercise or perform the power, right, or function is during the period that starts on the amendment date and ends when the relevant period ends.

(2)

The entity may, by a notice in writing that is signed by the majority of its governing officers (or signed by its governing officer if it has only 1), modify the requirement or restriction if—

(a)

the modification relates to a matter in section 14 and does not relate to a matter in section 15; and

(b)

the modification is not inconsistent with any enactment or rule of law or equity; and

(c)

a majority of the entity’s governing officers believe, on reasonable grounds, that—

(i)

because of the effects of an outbreak of COVID-19, it is not, or is not likely to be, reasonably practicable for the person referred to in subsection (1) to comply (or comply fully) with the requirement or restriction; and

(ii)

the modification goes no further than is, or is likely to be, reasonably necessary in the circumstances; and

(d)

the modification—

(i)

complies with section 17 (which relates to expiry); and

(ii)

if it relates to dispute resolution or disciplinary proceedings, complies with the principles of natural justice; and

(e)

the majority of the entity’s governing officers believe, on reasonable grounds, that the modification is not oppressive, unfairly discriminatory, or unfairly prejudicial to any member, creditor, or other person; and

(f)

if the modification relates to a method or form of voting, the majority of the entity’s governing officers believe, on reasonable grounds, that the requirements or restrictions in the entity’s constitution or rules that relate to the integrity of the voting process are substantively maintained or enhanced (and section 11(2) applies to the forming of this belief with all necessary modifications); and

(g)

the entity complies with the conditions in section 18.

(3)

A modification made by an entity in accordance with this section has legal effect to the same extent as if it were made in accordance with the constitution or rules (and the procedures for amending the constitution or rules in any enactment).

(4)

A modification does not actually amend the text of the constitution or rules (but has legal effect under subsection (3) as if the text were amended).

(5)

To the extent that the modification is inconsistent with any enactment or rule of law or equity, the modification is of no effect.

(6)

See section 16 in relation to retrospective modifications.

(7)

For the purposes of subsections (2)(b) and (5), provisions in other enactments (and any rules of law or equity) that relate to amending, or require compliance with, constitutions or rules are disregarded.

11 Section 14 amended (Matters that may be modified under section 13)

(1)

In the heading to section 14, replace section 13 with section 13A.

(2)

In section 14(1), replace “Section 13” with Section 13A.

(3)

In section 14(1)(i), replace “section 10(2)” with section 10A(2).

(4)

In section 14(2), replace “section 41(1)(a)(i) or (iii)” with section 42A(1)(a)(i) or (iii).

12 Section 15 amended (Matters that may not be modified under section 13)

(1)

In the heading to section 15, replace section 13 with section 13A.

(2)

In section 15, replace “Section 13” with Section 13A.

(3)

In section 15(k), replace “section 41(1)(a)(ii)” with section 42A(1)(a)(ii).

13 Section 16 amended (Retrospective modifications)

(1)

In section 16(1), replace “section 13” with section 13A.

(2)

In section 16(2)(a) and (3), replace “21 March 2020” with “the amendment date”.

(3)

In section 16(2)(b), replace “commencement date” with “amendment date”.

14 Section 17 amended (Modifications must expire)

(1)

In the heading above section 17(1), replace initial period with initial 2021/22 period.

(2)

In section 17(1),—

(a)

replace “section 13” with section 13A; and

(b)

replace “initial period” with “initial 2021/22 period” in each place.

(3)

In section 17(2)(a) and (3), replace “initial period” with “initial 2021/22 period”.

(4)

In section 17(2)(b), replace “section 42(1)(b)” with section 42B(1)(b).

(5)

In section 17(5), replace “section 13” with section 13A.

15 Section 18 amended (Conditions)

(1)

In section 18(1), replace “relies on section 13” with “relies on section 13A.

(2)

In section 18(1)(a)(ii) and (c)(i), replace “section 13” with section 13A.

(3)

In section 18(1)(a)(iii), replace “section 13(2)(c), (e), and (f)” with section 13A(2)(c), (e), and (f).

16 Section 19 amended (Electronic means permitted for doing certain things to make modification)

(1)

In section 19(2), replace “modification under section 13” with “modification under section 13A.

(2)

In section 19(2)(b), replace “section 13(2)(c), (e), and (f)” with section 13A(2)(c), (e), and (f).

17 Section 20 amended (Modified method or form of voting may not be used for certain matters)

In section 20(1) and (2), replace “section 13” with section 13A.

18 Section 21 amended (Variation and revocation)

In section 21(1) and (2), replace “section 13” with section 13A.

19 Section 23 amended (Entity’s obligations to keep records)

(1)

In section 23, replace “the end of the relevant period” with “1 April 2021”.

(2)

In section 23, after “Part”, insert “in reliance on section 10 or 13”.

(3)

In section 23, insert as subsection (2):

(2)

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 in reliance on section 10A or 13A.

20 Section 25 replaced (Powers may only be exercised during relevant period)

Replace section 25 with:

25 Powers may only be exercised during relevant period

Every power to grant exemptions under section 26A, and the power under section 30A, may only be exercised—

(a)

during the initial 2021/22 period; and

(b)

if extended by an Order in Council made under section 42B, during the further period.

21 New section 26A inserted (Responsible Registrar or Minister may grant class exemptions)

Before section 27, insert:

26A Responsible Registrar or Minister may grant class exemptions

(1)

A responsible Registrar or Minister in relation to a specified Act may exempt classes of persons from compliance with any provision of the specified Act, or of a specified enactment made under the specified Act, that relates to any matter described in section 29(1).

(2)

An exemption may be granted on the terms and conditions (if any) that the responsible Registrar or Minister thinks fit.

(3)

An exemption must state the provision or provisions of the specified enactment to which the exemption applies.

(4)

To avoid doubt, an exemption may extend to exempt from compliance with any provision that is implied into a deed or an agreement by or under any provision referred to in subsection (1).

(5)

An exemption made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

(6)

The responsible Registrar’s or Minister’s reasons for granting the exemption (including why the exemption is appropriate) must be published with the exemption.

22 Section 29 amended (Description of provisions from which exemptions may be granted)

(1)

In section 29(1)(i), replace “section 41(1)(b)(i)” with section 42A(1)(b)(i).

(2)

In section 29(2), replace “section 41(1)(b)(ii)” with section 42A(1)(b)(ii).

23 New section 30A inserted (Chief Judge of Māori Land Court may grant relief without application)

Before the cross-heading above section 31, insert:

30A Chief Judge of Māori Land Court may grant relief without application

(1)

The Chief Judge of the Māori Land Court may, with or without an application being made, grant relief for any person or class of persons from compliance with any of the following that relate to any matter described in section 29(1):

(a)

the terms of a trust set out by order under section 219 of Te Ture Whenua Maori Act 1993 (relating to a Māori land trust):

(b)

the terms of an order under Part 13 of that Act incorporating a Māori incorporation:

(c)

the terms of a trust set out by order under section 338(7) and (8) of that Act (or the corresponding provisions of any former Act) (relating to a Māori reservation).

(2)

Before granting relief, the Chief Judge must be satisfied that—

(a)

the relief is necessary or desirable for the purpose of this Part as set out in section 24; and

(b)

the extent of the relief is not broader than is reasonably necessary to address the matters that gave rise to the relief.

(3)

Relief may be granted on the terms and conditions (if any) that the Chief Judge thinks fit.

(4)

Sections 29, 31 to 34, and 40 apply to relief granted under this section with all necessary modifications, including that—

(a)

references to exemptions are treated as references to relief under this section:

(b)

references to a responsible Registrar or Minister are treated as references to the Chief Judge.

(5)

This section does not limit any powers of the court.

24 Section 31 replaced (Exemptions may be retrospective to 21 March 2020)

Replace section 31 with:

31 Exemptions may be retrospective to amendment date

(1)

An exemption under this Part may be granted in respect of past acts or omissions.

(2)

However, no exemption may relate to an act or omission that occurred before the amendment date.

25 Section 33 amended (Exemption in force for not longer than relevant period)

(1)

In the heading above section 33(1), replace initial period with initial 2021/22 period.

(2)

In section 33(1), replace “initial period” with “initial 2021/22 period” in each place.

(3)

In section 33(2)(a) and (3), replace “initial period” with “initial 2021/22 period”.

(4)

In section 33(2)(b),—

(a)

replace “section 42” with section 42B; and

(b)

replace “section 26” with section 26A.

26 New sections 42A and 42B inserted

Before section 43, insert:

42A Regulations may change Part 2 or Part 3 matters

(1)

The Governor-General may, by Order in Council made on the recommendation of the joint Ministers, make regulations that do all or any of the following:

(a)

prescribe, for the purposes of section 13A,—

(i)

matters additional to those listed in section 14(1) (matters that may be modified):

(ii)

matters additional to those listed in section 15 (matters that may not be modified):

(iii)

matters listed in section 14(1) that may no longer be modified (in whole or in part):

(b)

prescribe, for the purposes of section 26A or 30A, or both,—

(i)

matters additional to those listed in section 29(1) (matters in respect of which exemptions or relief may be granted):

(ii)

matters listed in section 29(1) in respect of which exemptions or relief may no longer be granted (in whole or in part):

(c)

provide for anything incidental that is necessary for carrying out, or giving full effect to, this Act.

(2)

Regulations made under this section may—

(a)

relate to 1 or more classes of persons:

(b)

relate to 1 or more specified Acts (and specified enactments made under them):

(c)

make different provision for different cases on any differential basis.

(3)

Before making a recommendation for regulations under subsection (1)(a)(i), the joint Ministers must be satisfied that the regulations will not be inconsistent with the matters listed in section 15(a) to (j).

(4)

Before making a recommendation for regulations under subsection (1)(b), the joint Ministers must be satisfied that the regulations are necessary or desirable for the purpose of Part 3 set out in section 24.

(4A)

The joint Ministers’ reasons for making the recommendation under subsection (1) (including why the regulations are necessary or desirable) must be published together with the regulations.

(5)

Regulations made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

42B Order in Council may prescribe further period

(1)

The Governor-General may, by Order in Council made on the recommendation of the joint Ministers, extend all or any of the following for a further period prescribed by the order:

(a)

the application of section 10A:

(b)

the application of section 13A:

(c)

any or all powers to grant exemptions under section 26A:

(d)

the power to grant relief under section 30A.

(2)

Every further period must—

(a)

start on 1 May 2022; and

(b)

end no later than the close of 30 October 2022.

(3)

An order under subsection (1) may—

(a)

relate to 1 or more classes of persons:

(b)

relate to 1 or more specified Acts (and specified enactments made under them):

(c)

make different provision (including prescribing different periods) for different cases on any differential basis.

(4)

The power to make an order under subsection (1) may be exercised once only in respect of each section listed in that subsection.

(5)

However, the Governor-General may, by Order in Council made on the recommendation of the joint Ministers,—

(a)

revoke an order made under subsection (1) (in whole or in part):

(b)

amend an order made under subsection (1) to reduce any period.

(6)

The joint Ministers may make a recommendation for an order under subsection (1) only if they are satisfied that—

(a)

the order is necessary or desirable to address the effects of COVID-19; and

(b)

the period of the extension or each extension recommended for that order is no longer than is reasonably necessary to address the matters that gave rise to it.

(7)

Subsection (8) applies to the extent that a proposed recommendation relates to any of the following in relation to a specified Act for which a joint Minister is not the responsible Minister:

(a)

extending the application of section 10A or 13A to a type of entity that is registered, incorporated, or regulated under the specified Act:

(b)

extending a power to grant exemptions or relief in relation to the specified Act.

(8)

Before making the recommendation, the joint Ministers must consult the responsible Minister for the specified Act.

(9)

The joint Ministers’ reasons for making the recommendation (including why the order is necessary or desirable) must be published together with the order.

(10)

An order made under subsection (1) must be made at least 7 days before the end of the initial 2021/22 period.

(11)

In this section, responsible Minister, in relation to a specified Act, 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 the specified Act.

(12)

An order made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

27 Section 43 amended (Repeals)

(1)

After section 43(1), insert:

(1A)

Sections 10A, 13A, 26A, 30A, 42A, and 42B are repealed on 1 November 2022.

(2)

In section 43(2), replace “31 May 2022” with “30 September 2023”.

Part 3 Credit Contracts and Consumer Finance Act 2003

28 Amendment to Credit Contracts and Consumer Finance Act 2003

This Part amends the Credit Contracts and Consumer Finance Act 2003.

29 Section 9H amended (Responsible Lending Code comes into force by notice in Gazette)

After section 9H(2), insert:

(2A)

Despite subsection (2), a notice that is published in the Gazette on or before 31 December 2021 may state 1 or more dates that are sooner than the 28th day after the date on which the notice is published in the Gazette.

(2B)

Subsection (2A) and this subsection are repealed on 1 January 2022.

29 Section 9G amended (Preparation and issue of Responsible Lending Code)

After section 9G(3) (as inserted by the Secondary Legislation Act 2021), insert:

(3A)

Despite subsection (3), any Code that is published on or before 31 December 2021 may specify 1 or more commencement dates for different provisions of the Code that are before the 28th day after the date on which the Code is published.

(3B)

Subsection (3A) and this subsection are repealed on 1 January 2022.

Part 4 Consumer Information Standards (Origin of Food) Regulations 2021

30 Amendment to Consumer Information Standards (Origin of Food) Regulations 2021

This Part amends the Consumer Information Standards (Origin of Food) Regulations 2021.

31 Regulation 2 amended (Commencement)

In regulation 2, replace “12 November 2021” with “12 February 2022”.