The purpose of this Act is to acknowledge that it is a privilege for overseas persons to own or control sensitive New Zealand assets by—
(a)
requiring overseas investments in those assets, before being made, to meet criteria for consent; and
(b)
imposing conditions on those overseas investments.
4-
Overview
(1)
In this Act,—
(a)
this Part deals with preliminary matters, including the purpose of this Act and interpretation:
(b)
Part 2 contains the consent and conditions regime for overseas investments in sensitive New Zealand assets, and is organised as follows:
(i)
subpart 1 states when consent is required and the criteria for consent (except that those matters are stated in the Fisheries Act 1996 for overseas investments in fishing quota):
(ii)
subpart 2 sets out the procedure for obtaining consent and imposing conditions of consent:
(iii)
subpart 3 describes the role of the person (the regulator) who administers the regime:
(iv)
subpart 4 confers monitoring powers on the regulator:
subpart 5 deals with aspects of enforcement, including offences under this Act, penalties, and the court's powers to make orders for effective enforcement:
subpart 6 relates to regulations and other miscellaneous matters:
subpart 7 contains transitional provisions (mostly relating to the dissolution of the Overseas Investment Commission and the employment consequences for its employees) and amendments to other enactments.
(2)
This Act replaces the Overseas Investment Act 1973 and the Overseas Investment Regulations 1995.
(3)
This section is a guide only to the general scheme and effect of this Act.
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Act incorporates sections 56 to 58B of Fisheries Act 1996
(1)
This Act incorporates sections 56 to 58B of the Fisheries Act 1996 (which in this section are called the overseas investment fishing provisions) as if they were part of this Act, so that a reference in this Act to “this Act” includes a reference to the overseas investment fishing provisions.
(2)
See section 57A of the Fisheries Act 1996 for further provisions on the interpretation of the overseas investment fishing provisions.
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
(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 permit granted under the Immigration Act 1987 (or is exempt under that Act from holding that permit); 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.
The purpose of this definition is to provide that persons are overseas persons if they themselves are overseas persons (for example, not a New Zealand citizen or resident or, for companies, incorporated overseas) or they are 25% (or more) owned or controlled by an overseas person or persons.
(2)
In this Act, overseas person means—
(a)
an individual who is neither a New Zealand citizen nor ordinarily resident in New Zealand; or
(b)
a body corporate that is incorporated outside New Zealand or is a 25% or more subsidiary of a body corporate incorporated outside New Zealand; or
(c)
a body corporate (A) if an overseas person or persons have—
(i)
25% or more of any class of A's securities; or
(ii)
the power to control the composition of 25% or more of A's governing body; or
(iii)
the right to exercise or control the exercise of 25% or more of the voting power at a meeting of A; or
(d)
a partnership, unincorporated joint venture, or other unincorporated body of persons (other than a trust or unit trust) (A) if—
(i)
25% or more of A's partners or members are overseas persons; or
(ii)
an overseas person or persons have a beneficial interest in or entitlement to 25% or more of A's profits or assets (including on A's winding up); or
(iii)
an overseas person or persons have the right to exercise or control the exercise of 25% or more of the voting power at a meeting of A; or
(e)
a trust (A) if—
(i)
25% or more of A's governing body are overseas persons; or
(ii)
an overseas person or persons have a beneficial interest in or entitlement to 25% or more of A's trust property; or
(iii)
25% or more of the persons having the right to amend or control the amendment of A's trust deed are overseas persons; or
(iv)
25% or more of the persons having the right to control the composition of A's governing body are overseas persons; or
(f)
a unit trust (A) if—
(i)
the manager or trustee, or both, are overseas persons; or
(ii)
an overseas person or persons have a beneficial interest in or entitlement to 25% or more of A's trust property.
