Statutes Amendment Bill (No 2) 2017 Departmental Report 30 April 2018
Contents Overview... 2 Summary of recommendations... 3 Clause-by-clause analysis... 5 Part 1 Animal Welfare Act 1999... 5 Part 2 Biosecurity Act 1993... 6 Part 5 Children, Young Persons, and Their Families Act 1989... 6 Part 20 Parole Act 2002... 7 Part 24 Public Finance Act 1989... 8 Part 25 Public Records Act 2005... 8 Part 27 State-Owned Enterprises Act 1986... 9 Part 29 Weights and Measures Act 1987... 9 Submission analysis...10 Additional matters...11 Proposed new part Anti-Money Laundering and Countering Financing of Terrorism Act 2009...11
Overview 1. This report has been prepared by the Ministry of Justice (the Ministry) and provides advice to the Governance and Administration Committee on matters raised about the Statutes Amendment Bill (No 2) 2017 (the Bill). 2. The following departments have been consulted in the development of this report: Parliamentary Counsel Office, Department of Corrections, Department of Internal Affairs, Inland Revenue Department, Ministry for Primary Industries, Office of Treaty Settlements, and the Treasury. 3. The purpose of the Bill is to make short, technical, and non-controversial amendments to several statutes. The Bill is not designed to be used to make policy changes. SUBMISSION ANALYSIS 4. One submission was received from an interested member of the public. The submission is analysed in a separate section from the clause-by-clause analysis in this report, as it does not relate to an amendment currently in the Bill. CLAUSE BY CLAUSE ANALYSIS 5. This section of the report outlines several changes agencies would like to make to clauses or parts currently in the Bill. Most of the changes were identified following the introduction of the Bill, and are small amendments that are required to achieve the intent of the original proposal. In addition, several recommendations are to remove amendments from the Bill, as they have either been already achieved or are no longer considered necessary. The analysis only considers those areas of the Bill where changes are recommended. ADDITIONAL MATTERS 6. The Ministry noted in its initial briefing that it would invite the Committee to include urgent amendments to the Coroners Act 2006 and the Anti-Money Laundering and Countering Financing of Terrorism (AML/CFT) Act 2009. Following the initial briefing, the Ministry is now recommending to only progress the AML/CFT Act amendments in this Bill. The amendment to the Coroners Act 2006 is being progressed through the Coroners (Access to Body of Dead Person) Amendment Bill. 7. All Parliamentary parties support the inclusion of these amendments. 2
Summary of recommendations Rec Part & clause Recommendation Agency Para CHANGES RECOMMENDED BY GOVERNMENT AGENCIES 1 Part 1, cl 4 Amend new section 36(1)(b)(i) of the Animal Welfare Act 1999 to replace (such as a system of capture sensors or a wireless communication network) with (such as a system of capture sensors and a wireless communication network). MPI 8 13 2 Part 1, cl 4 Amend new section 36(1)(b)(ii) to refer to the fact that an animal has been captured, rather than the details of any animal captured. MPI 8 13 3 Part 2, cl 8 Amend new sections 24B(5A) and (9) of the Biosecurity Act 1993 to clarify what is meant by the reference to specified goods. MPI 14 15 4 Part 2, cl 8 Amend the wording in new section 24B(5B) of the Biosecurity Act 1993 to make it clear that an Import Health Standard can be suspended with respect to the type of goods, or with respect to where the goods are imported from. MPI 14 15 5 Part 5 Delete this part and reinsert it as Part 19A Oranga Tamariki Act 1989. PCO 16 17 6 Part 20 Insert a new clause in the Parole Act 2002 to enable arrest without warrant for breaches of interim supervision orders to ensure they are treated in the same manner as extended supervision orders. Corrections 18 23 7 Part 24, cl 76-77 Remove these clauses which amend the Public Finance Act 1989 from the Bill. Treasury 24 25 8 Part 25 Remove this Part which amends the Public Records Act 2005 from the Bill. DIA 26 27 3
9 Part 27, cl 95 Insert half yearly reports to the list of documents in new section 16A(1) of the State-Owned Enterprises Act 1986, which is inserted by clause 95 of the Bill. Treasury 28 30 10 Part 29 Remove this part which amends the Weights and Measures Act 1987 from the Bill. PCO 31 32 SUBMISSIONS ANALYSIS 11 No changes to the Bill are recommended. Government Bills can only make consequential amendments to Local Acts, and a potentially significant amount of consultation is required to repeal redundant Private Acts. MOJ 33 37 ADDITIONAL MATTERS 12 - Insert a new Part 1A into the Bill. - Insert a new clause to state that Part 1A amends the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the principle Act). - Insert a new clause to amend section 56 to state that, if a reporting entity is a partnership, the partnership may designate one of the partners as an AML/CFT compliance officer to administer and maintain its AML/CFT Programme, irrespective of whether the partnership has or does not have employees; and the partner so designated must report to another partner designated for the purpose by the partnership. - Insert new clauses to amend sections 90(2), 90(3), 100(b), 105(1)(b), 105(2)(b), and 112(b) to insert or partnership after body corporate. MOJ 38 42 4
Clause-by-clause analysis Part 1 Animal Welfare Act 1999 8. Part 1 amends the Animal Welfare Act 1999. The purpose of this amendment is to update the language in section 36 to unequivocally allow remote monitoring of livecapture animal traps as an alternative to manual inspection. MINOR CHANGES TO AMENDMENTS SHOULD BE MADE 9. The Ministry for Primary Industries (MPI) has identified minor changes that should be made to the amendment in Part 1, clause 4. Clause 4 replaces section 36(1) of the Animal Welfare Act 1999. EXAMPLE OF AN ELECTRONIC MONITORING SYSTEM 10. New section 36(1)(b)(i) provides an example of an electronic monitoring system that can be used to remotely monitor a trap. This example is described as such as a system of capture sensors or a wireless communication network. 11. MPI consider that this example would be clearer if the or were changed to an and. This is because one example of an electronic monitoring system currently envisaged would include both components (rather than one or the other). RECOMMENDATION 1 The Ministry for Primary Industries recommends amending new section 36(1)(b)(i) to replace (such as a system of capture sensors or a wireless communication network) with (such as a system of capture sensors and a wireless communication network). COMMUNICATION REQUIREMENTS FOR AN ELECTRONIC MONITORING SYSTEM 12. New section 36(1)(b)(ii) describes the requirement for the electronic monitoring system to communicate that an animal has been captured in the trap. The current wording provides that the electronic monitoring system must communicate details of any animal captured in the trap. MPI considers that the use of the term details makes this obligation unclear. 13. The intent of section 36 is to ensure people attend to the welfare of animals in traps promptly. MPI considers that details is an unnecessary qualifier which doesn t add anything to the requirement, and which potentially raises the question of what type of details should be communicated and to what extent. The obligation needs to be as clear as possible as contravention of section 36(1) is an infringement offence. 5
RECOMMENDATION 2 The Ministry for Primary Industries recommends amending new section 36(1)(b)(ii) to refer to the fact that an animal has been captured, rather than the details of any animal captured. Part 2 Biosecurity Act 1993 14. Part 2 amends the Biosecurity Act 1993. Clause 8 amends section 24B of the Biosecurity Act 1993 to provide for suspension of part of an import health standard (IHS). The purpose of this amendment is to allow an IHS to be suspended in relation to some goods when a change of knowledge or circumstances indicates an increased biosecurity risk for those goods, while allowing trade in other lower risk goods covered by the standard to continue. Clause 8 also provides for the reinstatement of an IHS in relation to goods in respect of which the standard was suspended. MINOR CHANGES TO AMENDMENTS SHOULD BE MADE 15. MPI has identified minor changes that should be made to the amendment in Part 2, clause 8. RECOMMENDATION 3 The Ministry for Primary Industries recommends amending new sections 24B(5A) and (9) to clarify what is meant by the reference to specified goods. RECOMMENDATION 4 The Ministry for Primary Industries recommends amending new section 24B(5B) to make it clear that an IHS can be suspended with respect to the type of goods, or with respect to where the goods are imported from. Part 5 Children, Young Persons, and Their Families Act 1989 16. Part 5 amends the Children, Young Persons, and Their Families Act 1989. The purpose of the amendment is to allow invoices from lawyers appointed to assist children or young people to be submitted to any Registrar of the court, rather than the Registrar of the court in which the proceedings were heard. 17. The Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 changed the name of the principal legislation to the Oranga Tamariki Act 1989. Accordingly, the name of this part needs to be updated and reinserted as Part 19A. 6
RECOMMENDATION 5 The Parliamentary Counsel Office recommends deleting this part and reinserting it as Part 19A Oranga Tamariki Act 1989. No change in the substance of the amendment will result from this change. Part 20 Parole Act 2002 18. Part 20 amends the Parole Act 2002. The purpose of these amendments is to ensure that interim supervision orders (ISOs) are treated in the same manner as extended supervision orders (ESOs). 19. ISOs were established via a Supplementary Order Paper at the Committee of the Whole House stage of the Parole (Extended Supervision Orders) Amendment Act 2014. They were established specifically to enable the imposition of electronic monitoring and Intensive Monitoring special conditions by the court while a full application is being decided. AN ADDITIONAL AMENDMENT SHOULD BE INSERTED 20. The Department of Corrections has identified a further amendment that is required to achieve the purpose of the proposal. This amendment is to enable arrest without warrant for breaches of interim supervision orders. This power exists for extended supervision orders. 21. Without the amendment, Corrections and Police would be unable to seek arrest and act in a swift and timely manner proportionate to the risk of the offender if a breach of an ISO occurs. ISOs are currently enforced via bail conditions, which allow for arrest without warrant if a breach occurs. SUITABILITY FOR A STATUTES AMENDMENT BILL 22. The Department of Corrections considers the amendment satisfies the criteria for inclusion in the Bill, in that it is short, technical, and non-controversial. The amendment would rectify a drafting issue that has meant the powers of interim supervision orders have not mirrored extended supervision orders as originally intended. 23. All Parliamentary parties agreed to the original proposal to amend the Parole Act 2002 to clarify that breaches of the conditions of an interim supervision order [ ] are to be treated in the same way as breaches of the conditions of an extended supervision order. The Ministry considers that this additional amendment is within the scope of the original proposal as agreed, and does not consider that further cross-party consultation is required. 7
RECOMMENDATION 6 The Department of Corrections recommends inserting a new clause to enable arrest without warrant for breaches of interim supervision orders to ensure they are treated in the same manner as extended supervision orders. Part 24 Public Finance Act 1989 AN AMENDMENT SHOULD BE REMOVED 24. Clauses 76 and 77 make amendments to the Public Finance Act 1989. The purpose of this amendment is to exempt Reserves Boards from auditing requirements except where the benefit in public accountability justifies the cost to audit the Board. 25. As noted in the Ministry s initial briefing to the Committee, the Treasury would like to remove clauses 76 and 77 from the Bill to allow them to be progressed through the Conservation Streamlining Bill (which is in development). Progressing these amendments through the Conservation Streamlining Bill will ensure consistency with the other amendments in that Bill. RECOMMENDATION 7 The Treasury recommends removing clauses 76 and 77 from the Bill. Part 25 Public Records Act 2005 AN AMENDMENT SHOULD BE REMOVED 26. Part 25 amends the Public Records Act 2005. The purpose of this amendment is to effect the change in name from Archives New Zealand to National Archives of New Zealand. 27. The Department of Internal Affairs would like to remove this amendment from the Bill. There are no strong internal drivers within Archives New Zealand or external pressures from stakeholders to change the name now. Additionally, the Department considers that it is not an appropriate time to change the name given the Government is still determining its priorities for Archives New Zealand. RECOMMENDATION 8 The Department of Internal Affairs recommends removing Part 25 from the Bill. 8
Part 27 State-Owned Enterprises Act 1986 28. Clause 95 amends the State-Owned Enterprises Act 1986. The purpose of this amendment is to require State-Owned Enterprises (SOEs) to publish accountability documents, and changes to those documents, on an Internet site maintained by or on behalf of the SOE, as soon as practicable after providing them to the responsible Minister. A MINOR CHANGE TO THE AMENDMENT SHOULD BE MADE 29. The Treasury considers that the list of documents in new section 16A(1) should be amended to include half yearly reports. These reports are considered accountability documents, and publishing these reports online would ensure continued transparency and accountability in reporting. 30. The Ministry considers that this additional amendment is within the scope of the original proposal as agreed, and does not consider that further cross-party consultation is required. RECOMMENDATION 9 The Treasury recommends inserting half yearly reports to the list of documents in new section 16A(1), which is inserted by clause 95 of the Bill. Part 29 Weights and Measures Act 1987 AN AMENDMENT SHOULD BE REMOVED 31. Part 29 amends the Weights and Measures Act 1987. The purpose of this amendment is to give a power once held by the Chief Inspector to the Chief Executive of the department responsible for the administration of the Act. There is no longer a Chief Inspector under the Act. 32. The Parliamentary Counsel Office has advised that this change has been effected through the editorial power possessed by the Chief Parliamentary Counsel under section 25 of the Legislation Act 2012. As such, this amendment is no longer required. RECOMMENDATION 10 The Parliamentary Counsel Office recommends removing Part 29 from the Bill. 9
Submission analysis 33. One submission was received on the Bill from Greg Scobie. Mr Scobie s submission is not related to any amendment currently in the Bill. 34. The substance of Mr Scobie s submission is that he suggests that the Committee undertake a programme of review for Local and Private Acts with a view to repealing any redundant legislation. Mr Scobie suggests repealing the following Acts: Dominion Life Assurance Office of New Zealand, Limited, Act 1931 Dannevirke and District Soldiers Institution Dissolution Act 1983 Hutt Valley and Bays Metropolitan Milk Board Validation Act 1952 Hutt Valley Electric Power Board Empowering Act 1950 (Private Act) (Private Act) (Local Act) (Local Act) 35. The Office of the Clerk has advised that Government bills can only make consequential amendments to Local Acts (i.e. not repeal any redundant legislation). Local bills are for the benefit of the locality who promoted the bill and should, therefore, be amended or repealed by that locality. Redundant Local Acts could be repealed by a Local Legislation Bill introduced by the Minister of Local Government. 36. Private Acts are promoted by a person or entity outside Parliament to deal with their particular interests or circumstances. Accordingly, repealing Private Acts should be done in consultation with the Acts promoters (or their descendants or successor entities) to ensure that the Act is truly redundant. The work required to consult is potentially considerable, particularly if the promoter s descendants cannot be easily found. 37. The Government periodically reviews redundant legislation including Private Acts and promotes legislation to repeal those Acts. The last occasion was in 2017 when the Statutes Repeal Act 2017 (now repealed) was enacted. RECOMMENDATION 11 No changes to the Bill are recommended. Government Bills can only make consequential amendments to Local Acts, and a potentially significant amount of consultation is required to repeal redundant Private Acts. 10
Additional matters Proposed new part Anti-Money Laundering and Countering Financing of Terrorism Act 2009 38. The Ministry noted in its initial briefing that it would invite the Committee to include urgent amendments to the Coroners Act 2006 and the Anti-Money Laundering and Countering Financing of Terrorism (AML/CFT) Act 2009. These amendments are outlined below. NATURE OF THE AMENDMENTS 39. The proposed new part would amend the Anti-Money Laundering and Countering Financing of Terrorism (AML/CFT) Act 2009 (the Act) to make technical amendments that were unintentionally omitted from the AML/CFT Amendment Act 2017. 40. The proposed amendments are required to ensure reporting entities structured as partnerships do not have unnecessary compliance costs. In addition, amendments are required to ensure that the Department of Internal Affairs can effectively supervise these entities. 41. In summary, the amendments are to: 41.1. allow a reporting entity that is structured as a partnership to appoint a partner as a compliance officer irrespective of whether the partnership has any employees. Currently, the Act requires that the compliance officer be an employee of the entity unless there are no other employees. In many cases, a partner of a firm is the most appropriate person to be the compliance officer. However, a partner is not an employee, and can only be the compliance officer where there are no employees. Therefore, an amendment is required to enable partners to be compliance officers irrespective of whether the firm has employees. 41.2. clarify that a reporting entity structured as a partnership can be prosecuted and liable to the same penalties applying to body corporates for criminal offending or a civil liability act. It was intended when drafting the AML/CFT Amendment Act 2017 that the partnership would be held liable under the Act. It was also intended that penalties which can be imposed on the partnership for failing to comply would be consistent with those which apply to a body corporate. However, the Act, as drafted, has the potential to frustrate this policy intent. Several small 11
amendments are required to ensure partnerships can be held liable in a consistent manner. 42. The Ministry considers that the amendments required satisfy the criteria for inclusion in a Statutes Amendment Bill. The proposed new part has received cross-party support. THE AMENDMENTS ARE URGENTLY REQURIED 43. Lawyers and conveyancers will have AML/CFT obligations from 1 July 2018, with accountants having obligations from 1 October 2018. These sectors typically make use of partnership arrangements and will face difficulties complying with their obligations until the amendments are made. Therefore, the Ministry considers that these amendments are sufficiently urgent to justify their inclusion at this stage of the process. RECOMMENDATION 12 Insert a new Part 1A into the Bill. Insert a new clause to state that the new part amends the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the principle Act). Insert a new clause to amend section 56 to state that, if a reporting entity is a partnership, the partnership may designate one of the partners as an AML/CFT compliance officer to administer and maintain its AML/CFT Programme, irrespective of whether the partnership has or does not have employees; and the partner so designated must report to another partner designated for the purpose by the partnership. Insert new clauses to amend sections 90(2), 90(3), 100(b), 105(1)(b), 105(2)(b), and 112(b) to insert or partnership after body corporate. 12
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