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| Overseas Investment Regulations 2005 |
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| Friday,December 16,2005 Posted: 12:44 BJT(0444 GMT) 奥克兰经商室 |
Overseas Investment Regulations 2005
Silvia Cartwright, Governor-General
Order in Council
At Wellington this 1st day of August 2005
Present:
Her Excellency the Governor-General in Council
Pursuant to section 61 of the Overseas Investment Act 2005, Her Excellency the Governor-General, acting on the advice and with the consent of the Executive Council and on the recommendation of the Minister of Finance, makes the following regulations.
Contents
1 Title
2 Commencement
3 Interpretation
Part 1
Consent
Procedure for offering farm land or farm land securities for acquisition on open market
4 Purpose of regulations 5 to 10
5 Procedure for offering farm land or farm land securities for acquisition on open market
6 Obligation of owner to advertise that farm land or farm land securities available for acquisition
7 Content of advertisement
8 Form of advertisement
9 Farm land or farm land securities must be on open market for minimum period
10 Advertisement must be published within previous 12 months
11 Effect of regulations 5 to 10
Procedure for offering foreshore, seabed, riverbed, or lakebed to the Crown
12 Procedure for offering foreshore, seabed, riverbed, or lakebed to the Crown
13 Obligation of owner to give notice to Minister and regulator
14 Content of notice
15 The Crown may waive right to acquire special land
16 Procedure if the Crown does not waive right to acquire special land at outset
17 Valuation of special land
18 Costs of valuation
19 Appointment of valuer is not an arbitration
20 Valuer may determine market value of special land with reference to market value of relevant land
21 Valuer must give notice to parties on determining market value of specialland
22 Minister and owner must negotiate in good faith
23 Effect of offering special land to the Crown
24 Minister must decide on whether to accept offer to acquire special land
25 Agreement for acquisition of special land by the Crown must be conditional on overseas investment receiving consent and being given effect to
26 What happens if there is material change to terms and conditions of
overseas investment transaction
27 Minister may delegate functions and powers to regulator Other factors for assessing benefit of overseas investment in sensitive land
28 Other factors for assessing benefit of overseas investment in sensitive land
Fees and charges
29 Fees and charges
30 When fees and charges are payable
Administrative penalties
31 Administrative penalty for late filing
32 Administrative penalty for retrospective consent
Part 2
Exemptions
Exemptions from requirement for consent
33 Certain transactions exempted from requirement for consent
Exemptions from requirement for consent provisions of Act
34 Exemption for persons connected to portfolio investors or New Zealand
controlled persons
35 Exemption for New Zealand controlled persons
36 Consequential exemption for other transactions
Applications for exemptions
37 Application for exemption
38 Requirements for application for exemption
Part 3
Miscellaneous
Notices
39 Relevant Minister or Ministers may give notice of exercise of powers
Service of notices
40 Service of notices
Schedule 1
Form of advertisement
Schedule 2
Fees and charges
Schedule 3
Portfolio investors
Schedule 4
New Zealand controlled persons
Regulations
1 Title
These regulations are the Overseas Investment Regulations 2005.
2 Commencement
These regulations come into force on 25 August 2005.
3 Interpretation
(1) In these regulations, unless the context otherwise requires,---
Act means the Overseas Investment Act 2005
certificate of title means a certificate of title or computer register
issued or created under the Land Transfer Act 1952
farm land securities has the meaning given to it by regulation 4
Minister means, except in regulations 37 and 39, the Minister of
Conservation
owner, in relation to relevant land,---
(a) means the owner of that land; and
(b) includes any person authorised in writing by the owner to act as the owner's agent requirement for consent means the requirement to obtain consent under all or any of the following provisions:
(a) section 10(1)(a) of the Act (which sets out the requirement for
consent to be obtained to a transaction that will result in an overseas
investment in sensitive land):
(b) section 10(1)(b) of the Act (which sets out the requirement for
consent to be obtained to a transaction that will result in an overseas
investment in significant business assets):
(c) section 57B of the Fisheries Act 1996 (which sets out the
requirement for consent to be obtained to a transaction that will result in an
overseas investment in fishing quota)
requirement for consent provisions of the Act---
(a) means either or both of the following provisions:
(i) section 10(1)(a) of the Act (which sets out the requirement
for consent to be obtained to a transaction that will result in an overseas
investment in sensitive land):
(ii) section 10(1)(b) of the Act (which sets out the requirement
for consent to be obtained to a transaction that will result in an overseas
investment in significant business assets); but
(b) does not include section 57B of the Fisheries Act 1996 (which sets
out the requirement for consent to be obtained to a transaction that will
result in an overseas investment in fishing quota)
special land has the meaning given to it by regulation 12
specified persons means persons---
(a) who are overseas persons only because of their direct or indirect
connection with a person listed in Schedule 3 or Schedule 4; but
(b) who would not be overseas persons if 1 or more of the persons listed
in Schedule 3 or Schedule 4 were not overseas persons.
(2) For the purposes of Schedule 2, specified transaction means a
transaction that has any of the following effects:
(a) the acquisition by an overseas person of any associated land in
addition to land that the overseas person has already been granted consent to
acquire where---
(i) the associated land to be acquired is,---
(A) if the person has already been granted consent to acquire
land not exceeding 100 hectares in area, less than 0.4 hectares in area; or
(B) if the person has already been granted consent to acquire
land exceeding 100 hectares in area, less than 5 hectares in area; and
(ii) neither the land that the person has already been granted
consent to acquire nor the associated land is land that is on an island (other
than the North or South Island) or is or includes foreshore, seabed, or the bed
of a lake:
(b) the reacquisition by an overseas person of land that was previously
owned by that person where---
(i) either the person---
(A) had initially been granted consent to acquire the land
under the Act; or
(B) had been the owner of the land at the time of becoming an
overseas person; and
(ii) the person had complied with all the conditions of any
consent granted for that land under the Act; and
(iii) the reacquisition of the land occurs, or is to occur, within
2 years of the person selling or transferring the land to another person:
(c) the acquisition by an overseas person of securities or rights or
interests in securities of any person that owns or controls, directly or
indirectly, any land or any estate or interest in land where---
(i) the acquisition will result in an increase of less than 5% to
the overseas person's beneficial entitlement to, or beneficial interest in, the
securities of the other person; and
(ii) the overseas person's beneficial entitlement to, or
beneficial interest in, the securities of the other person remains,---
(A) if the overseas person's beneficial entitlement to, or
beneficial interest in, the securities of the other person is less than 50%, at
less than 50%; or
(B) if the overseas person's beneficial entitlement to, or
beneficial interest in, the securities of the other person is between 50% and
75%, at less than 75%.
(3) Examples used in these regulations have the following status:
(a) an example is only illustrative of the provision to which it relates
and does not limit the provision; and
(b) if an example and the provision to which it relates are
inconsistent, the provision prevails.
Part 1
Consent
Procedure for offering farm land or farm land securities for acquisition on
open market
4 Purpose of regulations 5 to 10
The purpose of regulations 5 to 10 is to---
(a) prescribe, for the purposes of the criterion in section 16(1)(f) of the Act, the procedure for offering the farm land or the securities to which the overseas investment relates (farm land securities) for acquisition on the
open market to persons who are not overseas persons; and
(b) ensure that persons who are not overseas persons but who wish to acquire the farm land or farm land securities have reasonable notice that they are available for acquisition.
5 Procedure for offering farm land or farm land securities for acquisition
on open market For the purposes of section 16(1)(f) of the Act, the farm land or farm land
securities must be---
(a) offered for acquisition on the open market, to persons who are not overseas persons, in accordance with regulations 6 to 8; and
(b) available on the open market for the minimum period required by regulation 9; and
(c) advertised within the period required by regulation 10.
6 Obligation of owner to advertise that farm land or farm land securities available for acquisition
The owner must advertise that the farm land or the farm land securities are available for acquisition.
7 Content of advertisement
The advertisement under regulation 6 must---
(a) contain a general description of the relevant land; and
(b) contain a statement that says that---
(i) the farm land or the farm land securities are available for acquisition; and
(ii) offers are sought from potential purchasers; and
(c) state the contact details of the owner.
8 Form of advertisement
The advertisement under regulation 6 must be published---
(a) in any medium that is---
(i) in the list set out in Schedule 1 (or another medium that is
generally used for advertising land for acquisition on the open market); and
(ii) generally available to persons in the district in which the relevant land is located; and
(b) in accordance with the minimum requirements set out in Schedule 1 for that particular medium (or, if another medium is used, in accordance with the general practice for advertising land for acquisition on the open market in
that medium).
9 Farm land or farm land securities must be on open market for minimum
period
(1) The farm land or the farm land securities must be available for
acquisition on the open market---
(a) for at least 20 working days after an advertisement is first placed
under regulation 6; or
(b) for a longer period, if the advertisement under regulation 6 has stated or implied that offers will be accepted for that longer period.
(2) However, the owner may accept an offer for the farm land or the farm land securities before the end of the period referred to in subclause (1)(a) or
(b) from a person who is not an overseas person.
10 Advertisement must be published within previous 12 months
The advertisement under regulation 6 must be published within the period of 12
months that precedes the earlier of the following dates:
(a) the date on which an application for consent to the relevant
overseas investment transaction is made; or
(b) the date on which the relevant overseas investment transaction that requires consent (or will require consent before it is given effect) is given effect to.
11 Effect of regulations 5 to 10
To avoid doubt, regulations 5 to 10 do not require any person to---
(a) unconditionally offer the farm land or the farm land securities
under any transaction; or
(b) enter into any transaction for the farm land or the farm land
securities.
Procedure for offering foreshore, seabed, riverbed, or lakebed to the Crown
12 Procedure for offering foreshore, seabed, riverbed, or lakebed to the Crown
For the purposes of section 17(2)(f) of the Act, the foreshore, seabed,
riverbed, or lakebed (special land) must be offered to the Crown (acting by and through the Minister) for acquisition in accordance with regulations 13 to 27.
13 Obligation of owner to give notice to Minister and regulator
The owner must give written notice to the Minister and the regulator if---
(a) the owner intends to give effect to an overseas investment
transaction in respect of any relevant land; and
(b) the relevant land is or includes special land.
14 Content of notice
A notice under regulation 13 must---
(a) state that the relevant land is or includes special land; and
(b) contain a legal description of the relevant land, including a copy
of its certificate of title (if it has one); and
(c) provide the postal address of the relevant land or, if the relevant land does not have a postal address, a narrative or diagrammatic description of the relevant land that contains sufficient information for a person who was not previously familiar with the land to locate and inspect---
(i) the relevant land:
(ii) the special land; and
(d) state the proposed consideration for the relevant overseas
investment transaction; and
(e) state all the other terms and conditions of the relevant overseas
investment transaction; and
(f) if possible, identify the area of the relevant land that is special
land; and
(g) state---
(i) whether the special land needs to be surveyed before its market value can be determined and before it can be acquired by the Crown; or
(ii) whether the special land has previously been surveyed; and
(h) if paragraph (g)(ii) applies, be accompanied by a copy of the plan
of survey of the special land (if a copy of the plan is available); and
(i) state the owner's intention to offer to the Crown the right to acquire the special land; and
(j) state the contact details of the owner.
15 The Crown may waive right to acquire special land
(1) The Minister may give written notice to the owner at any time that the Crown waives its right to acquire the special land.
(2) If a notice under subclause (1) is given, the factor set out in section
17(2)(f) of the Act must be taken to have been complied with in respect of the
relevant overseas investment.
(3) To avoid doubt, a notice under subclause (1) may be given---
(a) at the outset, after the notice under regulation 13 has been given;
or
(b) at any other time until an agreement (if any at all) is entered into
between the Crown and the owner for the acquisition by the Crown of the special
land.
16 Procedure if the Crown does not waive right to acquire special land at
outset
(1) This regulation applies if, after the notice under regulation 13 is
given, the Minister decides not to give the notice under regulation 15 that the
Crown waives its right to acquire the special land.
(2) The Minister may give written notice to the owner that the Crown wishes
to have the market value of the special land determined by a public valuer
if---
(a) the notice under regulation 13 states that the special land has
previously been surveyed and a copy of the plan of survey is available; or
(b) subclause (3) applies and the special land has been surveyed in
accordance with that subclause.
(3) If the notice under regulation 13 states that the special land needs to
be surveyed, the Minister must arrange for a survey of the special land to be
carried out to the standard appropriate for determining---
(a) the market value of the special land; and
(b) whether the Crown would want to acquire that land.
(4) The Crown must meet---
(a) the costs of the survey of the special land referred to in subclause
(3) and of any subsequent surveys of the special land that may be required for
the purpose set out in that subclause; and
(b) any other incidental costs or expenses relating to those surveys.
17 Valuation of special land
(1) If a notice under regulation 16(2) is given, the Minister and the owner
must, within 20 working days after the date of the notice, appoint a public
valuer to determine the market value of the special land.
(2) If the Minister and the owner cannot agree on the public valuer to be
appointed under subclause (1), then each party must, within 30 working days
after the date of the notice given under regulation 16(2), appoint a public
valuer to determine jointly the market value of the special land.
(3) The public valuer or valuers, as the case may be, must determine the
market value of the special land within 20 working days of being appointed or,
if the public valuers were appointed on different dates, within 20 working days
of the second public valuer being appointed.
(4) If 2 public valuers have been appointed and they cannot agree on the
market value of the special land within the time specified in subclause (3),
they must appoint another public valuer to determine that value.
(5) If the valuers cannot agree on the public valuer to be appointed under
subclause (4), then either the Minister or the owner may request the President
of the New Zealand Institute of Valuers to appoint a public valuer to determine
the market value of the special land.
18 Costs of valuation
The costs of a public valuer appointed under regulation 17 must be met as
follows:
(a) if the public valuer is appointed jointly by the Minister and the
owner, the costs must be met equally by the Crown and the owner:
(b) if the public valuer is appointed by the Minister or the owner, the
costs must be met by the Crown or the owner, as the case may be:
(c) if the public valuer is appointed under regulation 17(4) or (5), the
costs must be met as determined by that public valuer.
19 Appointment of valuer is not an arbitration
(1) The appointment of a public valuer under regulation 17(4) or (5) is not
to be regarded as a submission to arbitration or an arbitration agreement.
(2) A public valuer appointed under regulation 17(4) or (5) is not to be
regarded as an arbitrator, and the Arbitration Act 1996 does not apply in
respect of the determination of the market value of the special land by that
public valuer.
20 Valuer may determine market value of special land with reference to
market value of relevant land
If only part of the relevant land is special land and that part is of a size,
shape, or nature for which there is no general demand or market, the public
valuer or public valuers, as the case may be, may---
(a) determine the market value of the whole of the relevant land; and
(b) use that value as a basis for determining the market value of the
special land.
21 Valuer must give notice to parties on determining market value of
special land
As soon as practicable after determining the market value of the special land,
the public valuer or public valuers, as the case may be, must give written
notice of that market value to the Minister and the owner.
22 Minister and owner must negotiate in good faith
(1) As soon as practicable after receiving notice of the market value of the
special land under regulation 21, the Minister and the owner must negotiate in
good faith to attempt to conclude an agreement in principle to the terms and
conditions of the acquisition by the Crown of the special land.
(2) Despite subclause (1), the agreement in principle must provide that the
consideration for the acquisition by the Crown of the special land must be
equal to, or less than, the market value of that land specified in the notice
under regulation 21.
(3) If the Minister considers that the market value of the special land is
negligible, the Minister may negotiate the agreement in principle to provide
that, subject to consent being given to the relevant overseas investment
transaction, the Crown is to acquire the special land for no consideration.
(4) If the Minister and the owner conclude the agreement in principle, the
owner must offer to the Crown the right to acquire the special land for the
consideration and on the terms and conditions stated in that agreement.
(5) The offer under subclause (4)---
(a) must be made in writing; and
(b) must be given to the Minister.
23 Effect of offering special land to the Crown
If the owner makes the offer under regulation 22, the factor set out in section
17(2)(f) of the Act must be taken to have been complied with in respect of the
relevant overseas investment.
24 Minister must decide on whether to accept offer to acquire special land
(1) The Minister must decide whether to take either of the actions specified
in subclause (2) within 30 working days after the date on which the offer under
regulation 22 is made.
(2) The actions are---
(a) to accept the offer for the consideration, and on the terms and
conditions, stated or referred to in the offer; or
(b) to waive the Crown's right to acquire the special land in accordance
with regulation 15.
25 Agreement for acquisition of special land by the Crown must be
conditional on overseas investment receiving consent and being given effect to
An agreement between the Crown and the owner for the acquisition by the Crown
of the special land must be conditional on---
(a) consent being granted to the relevant overseas investment; and
(b) the overseas investment transaction being given effect to.
26 What happens if there is material change to terms and conditions of
overseas investment transaction
(1) This regulation applies if there is a material change to the terms and
conditions of the relevant overseas investment transaction after---
(a) the notice under regulation 13 is given; or
(b) the offer under regulation 22 is made.
(2) If this regulation applies, the provisions of regulations 12 to 25 and
of this regulation apply (with all necessary modifications) in respect of the
special land as if those provisions had not yet been applied or had not been
complied with.
27 Minister may delegate functions and powers to regulator
(1) The Minister may delegate to the regulator any of his or her functions
or powers under these regulations.
(2) Any delegation must be done in the manner provided for in section 28 of
the State Sector Act 1988.
Other factors for assessing benefit of overseas investment in sensitive land
28 Other factors for assessing benefit of overseas investment in sensitive
land
The other factors that are referred to in section 17(2)(g) of the Act for
assessing whether an overseas investment in sensitive land will, or is likely
to, benefit New Zealand are as follows:
(a) whether the overseas investment will, or is likely to, result in
other consequential benefits to New Zealand (whether tangible or intangible
benefits (such as, for example, additional investments in New Zealand or
sponsorship of community projects)):
(b) whether the relevant overseas person is a key person in a key
industry of a country with which New Zealand will, or is likely to, benefit
from having improved relations:
(c) whether refusing the application for consent will, or is likely
to,---
(i) adversely affect New Zealand's image overseas or its trade or
international relations:
(ii) result in New Zealand breaching any of its international
obligations:
(d) whether granting the application for consent will, or is likely to,
result in the owner of the relevant land undertaking other significant
investment in New Zealand:
(e) whether the relevant overseas person has previously undertaken
investments that have been, or are, of benefit to New Zealand:
(f) whether the overseas investment will, or is likely to, give effect
to or advance a significant Government policy or strategy:
(g) whether the overseas investment will, or is likely to, enhance the
ongoing viability of other overseas investments undertaken by the relevant
overseas person.
Fees and charges
29 Fees and charges
(1) The fees and charges set out in Schedule 2 are payable to the regulator
for the matters to which they relate.
(2) The fees and charges are inclusive of goods and services tax.
30 When fees and charges are payable
A fee or charge that is payable under regulation 29 must be paid on the making
of an application or a request, as the case may be.
Administrative penalties
31 Administrative penalty for late filing
For the purposes of section 52 of the Act, the administrative penalty that the
regulator may require a person to pay if the person files, provides, or
produces a document required by or under the Act, these regulations, or a
condition of a consent or of an exemption with the regulator after the time
when the document must be filed, provided, or produced is $500.
32 Administrative penalty for retrospective consent
(1) For the purposes of section 53 of the Act, the administrative penalty
that the regulator may require an applicant for a retrospective consent to pay
is an amount that is not more than $20,000.
(2) In determining the amount of the administrative penalty under subclause
(1), the regulator must consider whether requiring the applicant to pay that
amount would be unduly harsh or oppressive given---
(a) the value of the consideration for the asset that was acquired under
the relevant overseas investment transaction; or
(b) the nature of, and the reasons for, the retrospective consent.
Part 2
Exemptions
Exemptions from requirement for consent
33 Certain transactions exempted from requirement for consent
(1) The requirement for consent does not apply to the extent that giving
effect to a transaction has any of the following effects:
(a) the acquisition by an overseas person of the securities or rights or
interests in securities or property---
(i) from another member of the same group, being a group that
comprises an overseas person and persons that are directly or indirectly wholly
owned by that overseas person, as part of a reconstruction or reorganisation of
that group; or
(ii) from an overseas person that directly or indirectly wholly
owns that overseas person:
(b) the acquisition by a company incorporated under the Companies Act
1993 of its own shares if---
(i) the acquisition does not alter the proportions in which
shares in the company are held by the shareholders or the relative voting
rights of the shareholders; or
(ii) the shares are acquired under section 112 or section 118 of
that Act:
(c) the acquisition by an overseas person of securities or property in
an amalgamated company under an amalgamation effected under the Companies Act
1955 or the Companies Act 1993 if the overseas person has the same direct or
indirect interest in or rights to the assets of that amalgamated company as
that overseas person had in relation to those assets prior to the amalgamation:
(d) the acquisition by an overseas person of redeemable preference
shares that are redeemable only in cash and that do not entitle the holder to
exercise voting rights except if the dividend payable is in arrears:
(e) the transfer of securities or rights or interests in securities or
property from a trustee to an overseas person who is a trustee of the same
trust on the appointment of a new trustee or the retirement of a trustee or on
the resettlement of a trust if that appointment, retirement, or resettlement
does not result in the trust becoming an overseas person:
(f) the transfer by a trustee, executor, or administrator of the will or
of the estate of a deceased person to an overseas person who is a beneficiary
of securities or rights or interests in securities or property under that will
or estate or under a trust established by that will or estate:
(g) the transfer by a trustee of a trust to an overseas person who is a
beneficiary of securities or rights or interests in securities or property
under that trust if---
(i) the trust is an overseas person; and
(ii) the acquisition of those securities or rights or interests in
securities or property by the trust has been previously consented to under the
Act; and
(iii) the transfer is not contrary to any conditions of that
consent:
(h) the acquisition by an overseas person of securities or rights or
interests in securities or property under an arrangement (security arrangement)
that---
(i) in substance secures payment or performance of an obligation
(regardless of the form of the transaction or the identity of the person who
has title to the securities or rights or interests); and
(ii) is entered into by the parties in good faith and in the
ordinary course of business; and
(iii) requires that the securities or rights or interests be
retransferred to the original transferor or extinguished on the payment or
performance of the obligation:
(i) the acquisition by an overseas person of securities or rights or
interests in securities or property as a result of the overseas person
enforcing a security arrangement in good faith:
(j) the reacquisition by an overseas person of securities or rights or
interests in securities or property as a result of the discharge of a security
arrangement:
(k) the acquisition of securities or rights or interests in securities
or property from the investment of funds by an overseas person carrying on in
New Zealand the business of life insurance if---
(i) the investment of the funds is made for the benefit of policy
holders at least 75 percent of whom are New Zealand citizens or persons
ordinarily resident in New Zealand; and
(ii) the investment is of funds held in the overseas person's Life
Insurance Fund within the meaning of section 15 of the Life Insurance Act 1908
if the overseas person carries on any other business:
(l) the acquisition of securities or rights or interests in securities
or property by or on behalf of an overseas person that is the trustee of a
superannuation scheme registered under the Superannuation Schemes Act 1989 from
the investment of all or part of the assets of the scheme for the benefit of
members at least 75 percent of whom are New Zealand citizens or persons
ordinarily resident in New Zealand:
(m) the acquisition by an overseas person of securities or rights or
interests in securities or property if---
(i) the securities or rights or interests are, or will be as a
result of the acquisition, relationship property (as defined in section 8 of
the Property (Relationships) Act 1976) of the overseas person and the overseas
person's spouse, civil union partner, or de facto partner; and
(ii) the overseas person's spouse, civil union partner, or de
facto partner is not an overseas person:
(n) the acquisition by an overseas person of securities or rights or
interests in securities or property as a result of a division of relationship
property under the Property (Relationships) Act 1976.
(2) The exemption under subclause (1)(a) also applies if the overseas person
acquires less than 100% of the securities or rights or interests in securities
or property referred to in that subclause, so long as at least 95% of those
securities or rights or interests are acquired by that overseas person at any
one time.
Exemptions from requirement for consent provisions of Act
34 Exemption for persons connected to portfolio investors or New Zealand
controlled persons
(1) Every specified person is exempt from the requirement for consent
provisions of the Act.
(2) The exemption under subclause (1) also applies to a specified person
if---
(a) the exemption does not apply under that subclause only because 1 or
more persons (which may include the specified person) are incorporated outside
New Zealand; and
(b) each of those persons incorporated outside New Zealand is directly
or indirectly wholly-owned by a person listed in Schedule 3 or Schedule 4.
(3) However, the exemption under subclause (1) does not apply to a specified
person if 1 person listed in Schedule 3 has 25% control, or 2 or more overseas
persons (including persons listed in Schedule 3, but not persons listed in
Schedule 4) have cumulatively 75% control, of the specified person by having
(directly or indirectly)---
(a) a beneficial entitlement to, or a beneficial interest in, 25% or
more or 75% or more (as the case may be) of the specified securities of the
specified person; or
(b) the right to exercise or control the exercise of 25% or more or 75%
or more (as the case may be) of the voting power at a meeting of the specified
person; or
(c) the right to appoint or control the appointment of 25% or more or
75% or more (as the case may be) of the board of directors (or other persons or
body exercising powers of management, however described) of the specified
person.
Example 1
Company A holds 20% and Company B holds 5% of Company X's shares. Both Company
A and Company B are overseas persons but Company A is listed in Schedule 3.
So Company X is exempt under regulation 34 (if there is no other reason why
Company X is an overseas person).
Example 2
Company C buys 25% of Company X's shares. Company C is an overseas person
because it is a subsidiary of a company listed in Schedule 4 (and is not an
overseas person for any other reason).
So Company X is still exempt under regulation 34 (if there is no other reason
why Company X is an overseas person).
Example 3
Company D buys 25% of Company X's shares. Company D is an overseas person and
is not listed in Schedule 3 or 4.
So Company X no longer qualifies for the exemption under regulation 34.
Example 4
Company A increases its shareholding in Company X to 25%. Company A is listed
in Schedule 3.
So Company X no longer qualifies for the exemption under regulation 34.
35 Exemption for New Zealand controlled persons
Every person listed in Schedule 4 is exempted from the requirement for consent
provisions of the Act.
36 Consequential exemption for other transactions
(1) Every person is exempted from the requirement for consent provisions of
the Act for a transaction if, for a transaction that will have a result
specified in section 12(b) of the Act, every overseas person to which section
12(b) applies will become a person that is exempted from the requirement for
consent provisions of the Act by regulation 34 or regulation 35.
(2) Every person is exempted from the requirement for consent provisions of
the Act for a transaction that will have a result specified in section 13(1) of
the Act if every overseas person to which section 13(1) applies is exempted
from the requirement for consent provisions of the Act by regulation 34 or
regulation 35.
Applications for exemptions
37 Application for exemption
(1) The relevant Minister or Ministers may, on application in accordance
with regulation 38, exempt any transaction, person, interest, right, or assets,
or class of transactions, persons, interests, rights, or assets from the
requirement for consent or from the definition of overseas person or associate
or associated land.
(2) The relevant Minister or Ministers may grant an exemption under
subclause (1) subject to any terms and conditions that the relevant Minister or
Ministers think fit.
(3) An exemption under subclause (1) may at any time be amended or revoked.
38 Requirements for application for exemption
(1) An application for an exemption under regulation 37(1) must---
(a) be in writing; and
(b) be signed by each applicant; and
(c) contain an explanation of why the exemption is required.
(2) The explanation referred to in subclause (1)(c) may state, for example,
that the transaction to which the application for exemption relates is similar
to other exemptions that have already been granted.
Part 3
Miscellaneous
Notices
39 Relevant Minister or Ministers may give notice of exercise of powers
(1) The relevant Minister or Ministers may give notice of the exercise of
any powers under the Act or these regulations.
(2) A notice under subclause (1) may be given---
(a) in the Gazette:
(b) to a particular person.
(3) Every person is bound by a notice given under subclause (1).
(4) A notice under subclause (1) may at any time be amended or revoked.
Service of notices
40 Service of notices
(1) A notice or other document required to be served on, or given to, any
person under the Act or these regulations is sufficiently served if it is---
(a) delivered personally to the person; or
(b) delivered to the person at the person's usual or last known place of
residence or business; or
(c) sent by fax or email to the person's fax number or email address; or
(d) posted in a letter addressed to the person at the person's usual or
last known place of residence or business.
(2) If a notice or other document is to be served on a body (whether
incorporated or not), service on an officer of the body in accordance with
subclause (1) is taken to be service on the body.
(3) If a notice or other document is to be served on a partnership, service
on any one of the partners in accordance with subclause (1) is taken to be
service on the partnership.
(4) A notice or other document sent by post to a person in accordance with
subclause (1)(d) must be treated as having been received by that person at the
time at which the letter would have been delivered in the ordinary course of
post.
Schedule 1 r 8
Form of advertisement
Medium Minimum requirements
Internet Must be of usual prominence on an internet site
generally used for advertising acquisition of land on
the open market for 20 working days
Newspaper Must be of usual prominence in the property section of
1 edition
Notice or sign Must be of usual prominence at the real estate agent's
office for 20 working days
Placard Must be displayed on the relevant land for 20 working
days and in a manner that ensures, as far as is
reasonably practicable, that it attracts the attention
of the persons to whom the advertisement is directed
Real estate sales Must be of usual prominence in 1 edition
publication
Schedule 2 r 29
Fees and charges
Part 1
Applications relating to overseas investments in sensitive land
Determination by
the relevant
Ministers or by
the regulator
Application under delegation $
For consent for a transaction (other than a
specified transaction): Relevant Ministers
for each consent 8,700
maximum amount payable for a
transaction 21,800
for every tenth application by same
applicant no fee
For consent for a transaction (other than a
specified transaction): Regulator
for each consent 8,200
maximum amount payable for a
transaction 20,500
for every tenth application by same
applicant no fee
For consent for a specified transaction: Relevant Ministers
or regulator
for each consent 2,700
For consent for a series of transactions
involving either the same vendor or the same
purchaser that follows the grant of a
conditional consent for that series of
transactions: Relevant Ministers
or regulator
for initial conditional consent 8,000
for each following consent 6,000
For variation of consent or conditions of
consent Relevant Ministers 7,600
For variation of consent or conditions of
consent Regulator 3,100
For exemption under regulation 37: Relevant Ministers
for 1 transaction 2,500
for more than 1 transaction:
for each transaction 2,500
maximum amount payable for an
application 19,000
For exemption under regulation 37: Regulator
for 1 transaction 2,200
for more than 1 transaction:
for each transaction 2,200
maximum amount payable for an
application 19,000
Part 2
Applications relating to overseas investment in significant business assets
Application $
For consent for a transaction:
for each consent 2,100
maximum amount payable for a transaction 5,300
For variation of consent or conditions of consent 1,200
For exemption under regulation 37:
for 1 transaction 2,500
for more than 1 transaction:
for each transaction 2,500
maximum amount payable for an application 19,000
Part 3
Applications relating to overseas investment in fishing quota
Application $
For consent for a transaction:
for each consent 36,000
Part 4
Other applications
Application $
For exemption under regulation 37 by addition to Schedule 3 (which
relates to portfolio investors):
application fee 1,000
monitoring compliance with conditions of exemption for each
12-month period following addition to Schedule 3 700
For exemption under regulation 37 by addition to Schedule 4 (which
relates to New Zealand controlled persons):
application fee 6,000
monitoring compliance with conditions of exemption for each
12-month period following addition to Schedule 4 4,100
Part 5
Administrative and information services
Service $
For a copy of a document containing any consent, or a copy of a
decision sheet, previously given to an applicant or the applicant's
agent 30
For an annual subscription for monthly decision sheets compiled by
the regulator 180
For providing monthly sets of decision sheets compiled by the
regulator 30
For a set of annual statistics compiled by the regulator 30
For the provision of other information or services 120 per
hour
Schedule 3 r 34
Portfolio investors
Asteron Life Limited
Asteron Retirement Investment Limited
Australia Reinsurance Company Limited
Citicorp New Zealand Limited
HSBC Nominees (New Zealand) Limited
J. P. Morgan Securities New Zealand Limited
Munich Reinsurance Company Limited
National Mutual Life Association of Australasia Limited
The Colonial Mutual Life Assurance Society Limited
The New Zealand Refining Nominees Limited
Vero Insurance New Zealand Limited
Schedule 4 rr 34, 35
New Zealand controlled persons
Fisher & Paykel Appliances Holdings Ltd
Fulton Hogan Ltd
Guinness Peat Group PLC
Infrastructure & Utilities NZ Limited
Waste Management N.Z. Ltd
Diane Morcom,
Clerk of the Executive Council.
Explanatory Note
This note is not part of the regulations, but is intended to indicate their
general effect.
These regulations, which come into force on 25 August 2005, prescribe
various matters for the purposes of the Overseas Investment Act 2005 (the Act).
The Act, which also comes into force on 25 August 2005 (by a separate order),
replaces the Overseas Investment Act 1973 and the Overseas Investment
Regulations 1995. The Act---
o requires overseas investments in sensitive New Zealand assets to meet
certain criteria for consent before those overseas investments are made; and
o provides for conditions to be imposed on those overseas investments.
These regulations provide for the following matters under the Act:
o the procedure for offering farm land or securities to which an overseas
investment relates (farm land securities) for acquisition on the open market:
o the procedure for offering foreshore, seabed, riverbed, and lakebed to
the Crown:
o additional factors for assessing the benefit to New Zealand of overseas
investments in sensitive land:
o the fees and charges that are payable for applications for consents and
for several other matters:
o the administrative penalties that are payable for late filing of
documents and for retrospective consents:
o the exemptions from the requirement to obtain consent that apply in
relation to overseas investment transactions that have certain specified
effects:
o the procedure for making applications for exemptions:
o the giving and service of notices.
Regulations 4 to 11 set out, for the purposes of section 16(1)(f) of the Act,
the procedure for offering farm land or farm land securities for acquisition on
the open market to persons who are not overseas persons. Section 16(1)(f) of
the Act sets out, in a case where the relevant land is or includes farm land,
one of the criteria for consent to an overseas investment in sensitive land.
The procedure requires an advertisement that advertises that the farm land or
the farm land securities are available for acquisition to be placed in a medium
that is in the list set out in Schedule 1 of these regulations or that is
generally available to persons in the district in which the relevant land is
located. The farm land or the farm land securities must be available for
acquisition on the open market for at least 20 working days after the
advertisement is first placed, or for a longer period if the advertisement has
stated or implied that offers will be accepted for that longer period. The
advertisement must be published within the period of 12 months that precedes
the earlier of the date on which an application for consent to the relevant
overseas investment transaction is made or the date on which the relevant
overseas investment transaction that requires consent (or will require consent
before it is given effect) is given effect.
The procedure has essentially been carried over from the Overseas Investment
Regulations 1995. The only difference is in relation to the minimum
requirements for placards that are set out in Schedule 1 of these regulations.
Those minimum requirements now provide that a placard must be displayed on the
relevant land for 20 working days and in a manner that ensures, as far as is
reasonably practicable, that it attracts the attention of the persons to whom
the advertisement is directed. Under the Overseas Investment Regulations 1995,
the minimum requirements for that medium provided that placards must be of
usual prominence on the relevant land for 20 working days.
Regulations 12 to 27 set out, for the purposes of section 17(2)(f) of the Act,
the procedure for offering foreshore, seabed, riverbed, or lakebed (special
land) to the Crown. Section 17(2)(f) of the Act sets out, in a case where the
relevant land is or includes special land, one of the factors for assessing the
benefit to New Zealand of an overseas investment in sensitive land. Under
section 17(2)(f), the Crown essentially has the right of first refusal over the
special land.
The procedure requires the owner of the relevant land to give written notice to
the Minister of Conservation (the Minister) if the owner intends to give effect
to an overseas investment transaction and the relevant land is or includes
special land. The notice must state whether the special land needs to be
surveyed before its market value can be determined and before it can be
acquired by the Crown or whether the special land has previously been surveyed.
On receipt of that notice, the Minister may do 1 of 2 things. The Minister may
waive the Crown's right to acquire the special land by written notice to the
owner. The Minister may waive this right at this stage of the procedure or at
any other stage until an agreement is entered into between the Crown and the
owner for the acquisition by the Crown of the special land. If the Crown waives
its right to acquire the special land, the factor set out in section 17(2)(f)
of the Act must be taken to have been complied with in respect of the relevant
overseas investment.
Alternatively, the Minister may give written notice that the Crown wishes to
have the market value of the special land determined by a public valuer. The
Minister may give the notice only if the special land has previously been
surveyed or, if it has not, only after the Minister has arranged for a survey
to be conducted at the Crown's expense. If the Minister gives the notice, the
Minister and the owner must, within 20 working days after the date of that
notice, appoint a public valuer to determine the market value of the special
land. If the parties cannot agree on the public valuer to be appointed, a
mechanism for the appointment of a public valuer or public valuers to determine
the market value of the special land is provided.
After the market value of the special land has been determined, the Minister
and the owner must negotiate in good faith to attempt to conclude an agreement
in principle to the terms and conditions of the acquisition by the Crown of the
special land. The agreement in principle must provide that the consideration
payable by the Crown for the special land must be equal to, or less than, the
assessed market value of that land. If the Minister and the owner conclude the
agreement in principle, the owner must offer to the Crown the right to acquire
the special land for the consideration and on the terms and conditions stated
in that agreement. If the owner makes the offer, the factor set out in section
17(2)(f) of the Act must be taken to have been complied with in respect of the
relevant overseas investment.
The Minister must decide, within 30 working days after the date on which the
offer is made, whether the Crown should accept the offer or whether it should
waive its right to acquire the special land.
Regulation 28 sets out other factors for assessing whether an overseas
investment in sensitive land will, or is likely to, benefit New Zealand, which
is one of the criteria that the relevant Ministers must take into account in
deciding whether to grant or refuse consent. The relevant Ministers must
consider all of these factors, in addition to the factors set out in section
17(2) of the Act, to determine which factor or factors (or parts of them) are
relevant to the overseas investment. If the relevant Ministers consider a
factor to be relevant, they must consider that factor in assessing the benefit
of the overseas investment to New Zealand.
Regulation 29 and Schedule 2 set out the fees and charges that are payable for
various matters under the new Act. Regulation 30 provides when those fees and
charges are payable.
Regulations 31 and 32 set out the administrative penalties for late filing of
documents and for retrospective consents. The administrative penalty for late
filing of documents is $500 and that for a retrospective consent is an amount
of up to $20,000. The regulator may, in determining the amount of the
administrative penalty for a retrospective consent, consider whether the amount
would be unduly harsh or oppressive given the value of the consideration for
the asset that was acquired under the relevant overseas investment transaction
or the nature of, and the reasons for, the retrospective consent.
Regulations 33 to 36 specify exemptions from the requirement to obtain consent
for overseas investments in sensitive New Zealand assets. These provisions have
substantially been carried over from the Overseas Investment Regulations 1995
and the Overseas Investment Exemption Notice 2001.
Regulation 33 sets out the exemptions that were previously set out in
regulation 6(a) to (m) (in relation to transactions not involving the
acquisition of land) of the Overseas Investment Regulations 1995 and the
corresponding exemptions that were previously set out in regulation 9(h) to (w)
(in relation to transactions involving the acquisition of land) of those
regulations. The main changes are as follows:
o the exemption for corporate restructuring in regulation 33(1)(a) is now
extended to cover a corporate restructuring that does not result in the
acquisition by the overseas person of 100% of the securities or rights or
interests in securities or property from another member of the same group (see
regulation 33(2)):
o the exemption for easements in regulation 9(u) of the Overseas
Investment Regulations 1995 is no longer necessary and has not been carried
over into these regulations given that the Act does not apply to an exempted
interest, which is defined under that Act to mean an easement or profit
à prendre.
Regulations 34 to 36 set out the exemptions that were previously set out in the
Overseas Investment Exemption Notice 2001 for certain classes of persons or
transactions.
Regulations 37 and 38 provide for applications for exemptions from the
requirement for consent and other matters, and for the requirements for those
applications.
Regulations 39 and 40 deal with miscellaneous matters such as the giving and
service of notices.
Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette: 4 August 2005.
These regulations are administered in the Treasury.
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