1: Title
This Act is the Reserve Bank of New Zealand Amendment Act 2008.
2: Commencement
1: Sections 157M to 157O section 17
2: Section 157I section 17
3: Section 157L section 17
4: The rest of this Act comes into force on the day after the date on which it receives the Royal assent. Section 2(3) brought into force 1 December 2010 Reserve Bank of New Zealand Amendment Act 2008 Commencement Order 2010
3: Principal Act amended
This Act amends the Reserve Bank of New Zealand Act 1989 2008-09-10 Reserve Bank of New Zealand Act 1989 2009-09-01 Reserve Bank of New Zealand Act 1989 2010-03-01 Reserve Bank of New Zealand Act 1989 OIC SR 2010/168 2010-12-01 Reserve Bank of New Zealand Act 1989
1: Amendments outside Part 6 of principal Act
4: Long Title repealed
The Long Title
5: New section 1A inserted
The following section is inserted after section 1
1A: Purpose
1: The purpose of this Act is to provide for the Reserve Bank of New Zealand, as the central bank, to be responsible for—
a: formulating and implementing monetary policy designed to promote stability in the general level of prices, while recognising the Crown’s right to determine economic policy; and
b: promoting the maintenance of a sound and efficient financial system; and
c: carrying out other functions, and exercising powers, specified in this Act.
2: This section does not limit the functions or powers given to the Bank by any other enactment.
6: Interpretation
The definition of operating expenses section 2(1) ; or
iii: any expenses agreed by the Minister and the Bank not to be operating expenses .
7: New section 16 substituted
Section 16
16: Dealing in foreign exchange by Bank
For the purposes of performing its functions and fulfilling its obligations under this Act or any other enactment, the Bank may deal in foreign exchange, on such terms and conditions as it thinks fit,—
a: with any person, including the Crown; and
b: on behalf of any person, including the Crown.
8: Foreign reserves
Section 24
2: The Bank must hold and maintain foreign reserves at that level or within those levels.
9: New section 33 substituted
Section 33
33: Policy advice
1: On request by the Minister, the Bank must provide advice to the Minister on any matter specified in the request that is connected with the functions of the Bank.
2: A request may not be made under subsection (1)
3: The Bank may also provide advice to the Minister, at any time, on any matters or subjects within the responsibility of the Bank.
10: Bank may require financial institution to supply information
Section 36
6: Sections 156G to 156I and 156J(2)(c) and (d) (which relate to the publication or disclosure of information or data supplied to the Bank) apply with all necessary modifications in respect of information and data supplied to the Bank under this section as if for each reference to section 156C in sections 156G(1) and (3) and 156J(2)(c) there were substituted a reference to section 36.
11: Disqualification of Governor and Deputy Governor
Section 46(1)(b) or of a deposit taker as defined in section 157C a registered bank
12: Removal of Governor from office
Section 49(2)(h)(iii) or a deposit taker as defined in section 157C a registered bank
13: Removal of Deputy Governor from office by Order in Council
Section 50(2)(d)(iii) or a deposit taker as defined in section 157C a registered bank
14: Duties of Board
1: Section 53(1)
a: keep under constant review the performance of the Bank in carrying out—
i: its primary function; and
ii: its functions relating to promoting the maintenance of a sound and efficient financial system; and
iii: its other functions under this Act or any other enactment: .
2: Section 53(3)(f)(iii) or a deposit taker as defined in section 157C a registered bank
15: New section 68B inserted
The following section is inserted after section 68A
68B: Bank to have regard to directions about government policy objectives
1: The Minister may direct the Bank to have regard to a government policy that relates to the Bank’s functions under this Part 5D
2: The Bank must have regard to every direction given by the Minister under this section.
3: The Minister must consult with the Bank before giving a direction.
4: A direction must—
a: be set out in a written statement signed by the Minister; and
b: as soon as practicable after it is given, be—
i: presented to the House of Representatives by the Minister; and
ii: published in the Gazette
5: The Minister may not give a direction that requires the performance or non-performance of a particular act by the Bank, or any employee or office holder of the Bank, or the bringing about of a particular result, in respect of a particular person.
6: A direction may be amended, revoked, or replaced in the same way as it may be given. 2004 No 115 ss 104(1), 113(1)(b), 114, 115(2) .
16: Further matters that may be prescribed
1: Section 81AA(2)
g: incorporate by reference a framework, standard, specification, or requirement that is published by, or on behalf of, any body or person in any country—
i: in whole or in part; and
ii: with any modifications, additions, or variations specified in the Order in Council.
2: Section 81AA
3: Schedule 3
17: New Part 5D inserted
The following Part is inserted after section 156ZE
5D: Deposit takers
Preliminary provisions
157A: Exercise of powers under this Part
The powers conferred on the Governor-General, the Minister, and the Bank by this Part
a: promoting the maintenance of a sound and efficient financial system; or
b: avoiding significant damage to the financial system that could result from the failure of a deposit taker.
157B: Interpretation
1: In this Part approved rating agency section 157J borrowing group capital ratio collective investment scheme
a: an arrangement or scheme to which a participatory security (within the meaning of section 2(1) of the Securities Act 1978) relates; and
b: a superannuation scheme (within the meaning of section 2A(1) of the Superannuation Schemes Act 1989); and
c: a unit trust (within the meaning of section 2(1) of the Unit Trusts Act 1960) debt security governing body
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) governing document guaranteeing subsidiary
a: is unconditionally liable (whether or not jointly or severally with the deposit taker or any other person) to repay some or all debt securities issued by the deposit taker; or
b: is liable to repay some or all debt securities issued by the deposit taker subject only to the condition that the deposit taker or any other person has failed to do so related party
a: the directors of the deposit taker; and
b: the senior office holders of the deposit taker; and
c: the relatives of persons referred to in paragraphs (a) and (b)
d: subsidiaries; and
e: in the case of a deposit taker that is a company, any person who—
i: owns, or in any way has the power to control (whether directly or indirectly), or has the right to acquire, 10% or more of the ordinary shares of the company; or
ii: owns, or in any way has the power to control (whether directly or indirectly), or has the right to acquire, 10% or more of the voting rights of the company; or
iii: has, by any other means, 10% or more of the control of the company; and
f: in the case of a deposit taker that is an entity other than a company, any person who—
i: is in a position to control (whether directly or indirectly) 10% or more of the voting rights in relation to that entity; or
ii: has, by any other means, 10% or more of the control of that entity; and
g: any person who has control (whether directly or indirectly) or significant influence over 25% or more of the composition of the governing body of the deposit taker; and
h: any person or class of persons declared by regulations to be a related party for the purposes of this Part relative
a: that person’s spouse, civil union partner, or de facto partner; and
b: any parent (including step-parent), brother, sister, or child (including stepchild) of that person; and
c: any parent (including step-parent), brother, sister, or child (including stepchild) of that person’s spouse, civil union partner, or de facto partner senior office holder
a: in relation to a deposit taker, means a person occupying a position that allows the person to exercise significant influence over the management or administration of the deposit holder (for example, a chief executive or a chief financial officer); and
b: includes any class or classes of persons declared by regulations to be senior office holders for the purposes of this Part
c: does not include any class or classes of persons declared by regulations not to be senior office holders for the purposes of this Part subsidiary trust deed trustee
2: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations for either or both of the following purposes:
a: declaring a person or class of persons to be a related party for the purposes of this Part
b: declaring a class of persons to be, or not to be, senior office holders for the purposes of this Part
157C: Deposit taker defined
1: For the purposes of this Part deposit taker
a: means a person who—
i: offers debt securities to the public in New Zealand; and
ii: carries on the business of borrowing and lending money, or providing financial services, or both; and
b: includes—
i: a building society as defined in section 2(1) of the Building Societies Act 1965, unless the building society is a registered bank; and
ii: a credit union as defined in section 2 of the Friendly Societies and Credit Unions Act 1982; and
iii: a person or class of persons that is declared by regulations to be a deposit taker for the purposes of this Part
c: does not include—
i: an issuer of a collective investment scheme:
ii: a registered bank:
iii: a local authority:
iv: the Crown (as defined in section 2(1) of the Public Finance Act 1989):
v: a person or class of persons that is declared by regulations not to be a deposit taker for the purposes of this Part
2: For the purposes of this Part
3: If a person has, before this section comes into force, offered debt securities to the public in New Zealand and any of those securities remain unpaid, the person must be treated as satisfying the requirement in subsection (1)(a)(i)
4: A person remains a deposit taker until all debt securities offered to the public in New Zealand by the person are repaid.
5: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations for the purpose of declaring a person or class of persons to be, or not to be, a deposit taker for the purposes of this Part
6: In considering whether to advise and recommend the making of regulations under subsection (5)
a: the purposes of this Part
b: the nature of the business activities carried on by the person or class of persons and the extent to which those activities—
i: are similar in substance to the activities of a deposit taker (as defined in subsection (1)
ii: involve activities as a deposit taker; and
c: the public interest; and
d: any other matters the Minister or the Bank considers relevant.
157D: Application of Part
This Part this Part
157E: Bank to consult before recommending making of regulations under this Part
1: The Bank must consult with the following before making a recommendation for the making of any regulations under this Part
a: the Securities Commission; and
b: if reasonably practicable, other persons, or the representatives of those persons, who the Bank considers will be substantially affected by any regulations made in accordance with the recommendation.
2: Failure to comply with subsection (1) this Part
157F: Principles to be taken into account under this Part
1: The Bank must take into account the principles in subsection (2) this Part
a: granting exemptions:
b: imposing terms and conditions in relation to exemptions:
c: making recommendations to the Minister for the making of regulations under this Part
2: The principles are the following:
a: the desirability of consistency in the treatment of similar institutions, regardless of matters such as their corporate form:
b: the importance of recognising—
i: that it is not the purpose of this Part
ii: that depositors are responsible for assessing risk in relation to potential investments and for their own investment choices:
c: the desirability of providing to depositors adequate information to enable them to assess risk in relation to potential investments and to distinguish between high-risk and low-risk deposit takers:
d: the desirability of sound governance of deposit takers:
e: the desirability of effective risk management by deposit takers:
f: the need to avoid unnecessary compliance costs:
g: the need to maintain competition within the deposit taking sector.
157G: Exemptions from Part
1: The Bank may, by notice in the Gazette
a: this Part
b: any regulations made under this Part
2: The Bank must not grant an exemption under this section unless it is satisfied that—
a: the exemption will be consistent with the maintenance of a sound and efficient financial system; and
b: compliance with the relevant provision or provisions would, in the circumstances, require the deposit taker, class of deposit takers, or trustee to comply with requirements that are unduly onerous or burdensome; and
c: the extent of the exemption is not broader than what is reasonably necessary to address the matters that gave rise to the exemption.
3: An exemption may be granted on any terms and conditions that the Bank thinks fit, including, in relation to a deposit taker,—
a: a requirement that the deposit taker have a minimum capital ratio:
b: a requirement that the deposit taker have a specified minimum level of capital:
c: a requirement that the deposit taker comply with specified liquidity requirements:
d: a requirement that the deposit taker disclose that it does not have a rating of its creditworthiness under section 157I
e: a prohibition or restriction on disclosure by the deposit taker of any rating of creditworthiness or financial condition that is not from an approved rating agency:
f: a maximum limit on exposures to related parties:
g: a requirement that the deposit taker comply with specified requirements in relation to the governance of the deposit taker:
h: a requirement that the deposit taker comply with specified requirements in relation to systems, policies, and standards to be adopted and complied with by the deposit taker for the purpose of managing credit risk, liquidity risk, market risk, and operational risk:
i: any other prudential requirements the Bank considers necessary or desirable to achieve the purposes of this Part
4: The Bank may amend or revoke an exemption in the same way as an exemption may be granted under this section.
5: The Bank’s reasons for granting an exemption (including why an exemption is appropriate) must be notified in the Gazette
6: However, the Bank may defer notifying or not notify the reasons for granting an exemption if the Bank is satisfied on reasonable grounds that it is proper to do so on the ground of commercial confidentiality.
7: An exemption under this section is a regulation for the purposes of the Acts and Regulations Publication Act 1989 and the Regulations (Disallowance) Act 1989.
157H: Effect of exemption
A person does not breach a requirement of this Part
a: an exemption from the requirement applies to that person; and
b: the person complies with the terms and conditions of the exemption. Credit ratings
157I: Deposit taker must have current credit rating
A deposit taker must have a current rating of its creditworthiness, or, if required by regulations made under section 157K
a: complies with the requirements prescribed by regulations made under section 157K
b: is given by an approved rating agency.
157J: Bank may approve rating agencies
1: The Bank may approve a person as a rating agency for the purposes of this Part
2: In deciding whether to approve a person as a rating agency, the Bank must have regard to the following:
a: the independence of the rating agency:
b: the adequacy of resources available to the rating agency:
c: the credibility and objectivity of the rating agency's methodology:
d: the consistency and comparability of the rating agency's ratings when assessed against ratings industry practice:
e: the adequacy of the rating agency's disclosure of information, including information about its processes, experience, and ownership:
f: relevant international standards, codes, and recommended practices relating to the ratings industry.
3: The Bank may, at any time, review the approval of a person as a rating agency, and in conducting the review the Bank must have regard to the matters in subsection (2)
4: If, after conducting the review, the Bank considers that the person should no longer be an approved rating agency, it may revoke the approval.
5: The Bank must publish and keep up to date a list of approved rating agencies on an Internet site maintained by, or on behalf of, the Bank that is publicly accessible at all reasonable times.
157K: Regulations relating to credit ratings
The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations for either or both of the following purposes:
a: providing for the following matters in relation to ratings of creditworthiness required to be held by deposit takers:
i: the type of rating (for example, whether it is a short-term or long-term rating):
ii: what the rating relates to (for example, whether it indicates the creditworthiness of a deposit taker with respect to a specific financial obligation or applies to the deposit taker’s overall creditworthiness):
b: requiring a deposit taker to have a rating of creditworthiness of the borrowing group of which the deposit taker is part. Governance requirements
157L: Governance requirements
1: If a deposit taker is a company or a building society,—
a: the governing body of the deposit taker must include at least 2 independent directors; and
b: the chairperson of the governing body of the deposit taker may not be an employee of either the deposit taker or a related party.
2: If a deposit taker is a subsidiary, the constitution of the deposit taker must not include any provision under which directors of the deposit taker may act otherwise than in the best interests of the deposit taker.
3: For the purposes of this section, independent director
a: is not an employee of either the deposit taker or a related party; and
b: is not a director of a related party; and
c: does not, directly or indirectly, have a qualifying interest in more than 10% of the voting securities of the deposit taker or a related party. Risk management
157M: Deposit taker must have and comply with risk management programme
1: Every deposit taker must have a risk management programme and take all practicable steps to comply with that programme.
2: The risk management programme must—
a: be in writing; and
b: set out the procedures that the deposit taker will use for the effective identification and management of the following risks:
i: credit risk:
ii: liquidity risk:
iii: market risk:
iv: operational risk; and
c: set out appropriate and auditable documentation and record keeping requirements; and
d: describe the steps that the deposit taker will take to ensure that the programme remains current, which must include procedures for—
i: regular review of the programme to systematically identify deficiencies in the effectiveness of the programme; and
ii: obtaining the approval of the trustee to amendments to the programme that are necessary to address such deficiencies; and
e: be appropriate to the operations of the deposit taker, having regard to the factors relevant to the risks referred to in paragraph (b)
3: The Bank may issue, in the manner that the Governor thinks fit, guidelines for the purpose of interpreting the risk categories referred to in subsection (2)(b)
157N: Risk management programme must be provided to trustee and must be amended if required by trustee
1: The deposit taker must give a copy of its risk management programme to the trustee.
2: The trustee must, as soon as practicable after receiving the copy of the risk management programme, inform the deposit taker whether the trustee is satisfied that the risk management programme meets the requirements in section 157M(2)
3: If the trustee is not satisfied that the risk management programme meets the requirements in section 157M(2)
a: the trustee may require the deposit taker to amend the programme and to resubmit the programme to the trustee for approval within any reasonable time that the trustee may specify; and
b: the deposit taker must comply with those requirements.
157O: Trustee may require deposit taker to have risk management programme audited
1: The trustee may require the deposit taker to have the risk management programme audited in a specified manner, at the cost of the deposit taker, within any reasonable time that the trustee may specify.
2: The deposit taker must comply with a requirement of the trustee under subsection (1) Minimum capital requirement
157P: Regulations may impose requirement that trust deed sets out minimum capital that deposit taker is required to maintain
1: The Governor General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations for the purpose of imposing a requirement that deposit takers and trustees ensure that the trust deed sets out the minimum capital that the deposit taker is required to maintain.
2: Regulations made under this section may—
a: require the trust deed to set out—
i: the amount of the minimum capital that the deposit taker is required to maintain; and
ii: the form of that capital (for example, the financial instruments that may be taken into account in calculating capital); and
b: provide that the amount of the minimum capital set out in the trust deed must be not less than an amount prescribed in the regulations; and
c: provide that the form of the capital set out in the trust deed must be a form prescribed by the regulations.
157Q: Deposit takers and trustees must ensure trust deed sets out minimum capital deposit taker is required to maintain
A deposit taker and the trustee must comply with any requirement imposed by regulations made under section 157P
157R: Deposit taker must maintain not less than minimum capital prescribed
A deposit taker must maintain minimum capital of not less than the amount prescribed by regulations for the purposes of section 157P Capital ratio requirement
157S: Regulations may impose requirement that trust deed includes capital ratio
1: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations for the purpose of imposing a requirement that deposit takers and trustees ensure that trust deeds include a capital ratio, calculated in accordance with a prescribed framework, that the deposit taker must maintain.
2: Regulations made under this section may do 1 or more of the following:
a: provide for the capital ratio to be calculated in respect of—
i: the deposit taker; or
ii: a borrowing group of which the deposit taker is part:
b: provide for the capital ratio to be set at a specified minimum level for a particular deposit taker or a class of deposit takers:
c: prescribe the framework in accordance with which the capital ratio must be calculated:
d: provide for variation (whether as to content or otherwise) of the framework to apply to particular deposit takers or classes of deposit takers:
e: incorporate by reference a framework published by, or on behalf of, any body or person in any country—
i: in whole or in part; and
ii: with modifications, additions, or variations specified in the regulations.
3: The provisions of Schedule 3
157T: Deposit takers and trustees must ensure capital ratio included in trust deed
A deposit taker and the trustee must comply with any requirement imposed by regulations made under section 157S
157U: Deposit taker must maintain capital ratio required to be included in trust deed
A deposit taker must maintain any capital ratio that is required to be included in the trust deed by regulations made under section 157S Restrictions on related party exposures
157V: Regulations may impose requirement that trust deed includes maximum limit on exposures to related parties
1: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations for the purpose of imposing a requirement that deposit takers and trustees ensure that trust deeds include a maximum limit on exposures to related parties.
2: Regulations made under this section may—
a: provide that the maximum limit on exposures to related parties is relative to—
i: the capital of the deposit taker; or
ii: the capital of the borrowing group of which the deposit taker is part:
b: provide that the maximum limit on exposures to related parties applies in respect of exposures of the deposit taker or exposures calculated across the borrowing group of which the deposit taker is part:
c: require every deposit taker and trustee to ensure that the trust deed includes a specified maximum limit on exposures to related parties:
d: require every deposit taker and trustee to ensure that the trust deed includes a maximum limit on exposures to related parties that is fixed by agreement between the deposit taker and the trustee ( see section 157ZD
3: If subsection (2)(d)
157W: Regulations may incorporate by reference framework for calculation of maximum limit on exposures to related parties
1: Regulations made under section 157V
2: A framework incorporated by reference in the regulations—
a: may be incorporated in whole or in part; and
b: with modifications, additions, or variations specified in the regulations.
3: The provisions of Schedule 3 section 157V
157X: Deposit takers and trustees must ensure maximum limit on exposures to related parties is included in trust deed
A deposit taker and the trustee must comply with any requirement imposed by regulations made under section 157V
157Y: Deposit taker must not exceed maximum limit on related party exposures
A deposit taker must not exceed any maximum limit on exposures to related parties required by regulations made under section 157V Liquidity requirements
157Z: Regulations may impose requirement that liquidity requirements be included in trust deed
1: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations for the purpose of imposing a requirement that deposit takers and trustees ensure that trust deeds include liquidity requirements.
2: Regulations made under this section may, in relation to the liquidity requirements to be included in the trust deed, prescribe 1 or more of the following:
a: assets that qualify as liquid assets for the purposes of the regulations:
b: minimum amounts of liquid assets relative to liabilities that must be maintained by deposit takers:
c: requirements concerning matching maturity of assets and liabilities:
d: requirements in respect of a deposit taker that require the liquidity of the borrowing group of which the deposit taker is part to be taken into account:
e: other measures to better ensure that a deposit taker maintains prudent cash flows and a level of liquid assets sufficient to enable it to withstand a plausible range of liquidity shocks (for example, events that result in it experiencing a significantly reduced inflow of liquid assets).
157ZA: Deposit takers and trustees must ensure liquidity requirements are included in trust deeds
A deposit taker and the trustee must comply with any requirement prescribed by regulations made under section 157Z
157ZB: Deposit takers must comply with liquidity requirements in trust deeds
A deposit taker must comply with the liquidity requirements required to be included in the trust deed by regulations made under section 157Z Other matters relating to trust deeds
157ZC: Amendment to trust deed must be treated as if authorised to be made
1: If this Part this Part
a: must be treated for all purposes as if it were authorised to be made and were made in accordance with the provisions of the trust deed before the amendment was made; and
b: applies despite any defect in the form or mode of execution of the amendment.
2: Subsection (1)
157ZD: Trustee may execute amendment to trust deed
1: This section applies if—
a: this Part this Part
b: it is necessary to amend the trust deed within a certain time in order to comply with that requirement; and
c: the trustee has made reasonable efforts, in good faith, to negotiate with the deposit taker for the purpose of agreeing to an amendment to the trust deed to ensure compliance with the requirement; and
d: the trustee has not, within a reasonable period before the expiry of the time allowed for amending the trust deed, been able to reach an agreement with the deposit taker about the amendment to be made to the trust deed.
2: If this section applies, the trustee may execute a deed amending the trust deed without the consent or agreement of the deposit taker or any other person in order to ensure that the trust deed complies with the requirement of this Part
3: The deed amending the trust deed—
a: has effect despite there being no consent or agreement of the deposit taker or any other person; and
b: must be treated for all purposes as if it were authorised to be made and were made in accordance with the provisions of the trust deed before the amendment was made; and
c: applies despite any defect in its form or mode of execution.
4: Subsection (3) Obligations of trustees to Bank
157ZE: Bank may require trustee to attest as to deposit taker’s compliance with requirements
1: The Bank may require a trustee to attest to the Bank, at a time and in a manner specified by the Bank, as to whether the trustee is satisfied that the deposit taker is complying with the requirements of this Part this Part
2: If the Bank requires a trustee to attest to the Bank under this section, the trustee must either—
a: provide that attestation; or
b: if the trustee is not able to attest to the Bank as required, the trustee must report the reason, including the details of any non-compliance or suspected non-compliance by the deposit taker.
157ZF: Trustee must report to Bank non-compliance or likely non-compliance by deposit taker
If a trustee has reasonable grounds to believe that a failure on the part of the deposit taker to comply in a material respect with this Part this Part
157ZG: Obligation on trustees to disclose information to Bank in certain circumstances
1: This section applies if a trustee, in the course of or in connection with the performance of functions as trustee, becomes aware of information on the basis of which he or she could reasonably form an opinion that—
a: the deposit taker is unable to pay the deposit taker’s debts as they become due in the normal course of business; or
b: the value of the deposit taker’s assets is less than the value of the deposit taker’s liabilities, including contingent liabilities; or
c: it is likely that—
i: the deposit taker will be unlikely to be able to pay the deposit taker’s debts as they become due in the normal course of business; or
ii: the value of the deposit taker’s assets will be less than the value of the deposit taker’s liabilities, including contingent liabilities; or
d: the deposit taker has breached, or is likely to breach, in a material respect,—
i: the terms of the trust deed; or
ii: the terms of any offer of debt securities to which the trust deed relates.
2: This section also applies if the Bank, by notice in writing to the trustee, requires the trustee to provide the Bank with information relating to the business, operation, or management of a deposit taker.
3: If this section applies, the trustee must, as soon as practicable, disclose to the Bank all information held by the trustee that is relevant to the matter referred to in subsection (1) subsection (2)
157ZH: Protection of trustees
1: No civil, criminal, or disciplinary proceedings lie against a trustee arising from the disclosure in good faith of information to the Bank under section 157ZE to 157ZG
2: No person may terminate the appointment of a trustee by reason of the trustee disclosing information to the Bank in good faith under section 157ZE to 157ZG
3: No tribunal, body, or authority, having jurisdiction in respect of the professional conduct of a trustee, may make an order against, or do any act in relation to, that person in respect of the fact of that disclosure. Investigation and enforcement powers of Bank
157ZI: Bank may require report relating to deposit taker
1: For the purpose of investigating whether a deposit taker is complying with the requirements of this Part this Part
2: The deposit taker must provide the approved or appointed person with access to the accounting and other records of the deposit taker and must provide information relating to those records if the person preparing the report requests the deposit taker to do so for the purposes of the report.
3: Subsection (2) section 157ZK
4: To avoid doubt, the deposit taker is liable for the cost of every report that it is required to supply to the Bank under this section.
157ZJ: Power to obtain information and documents
1: This section applies if the Bank has reasonable cause to believe that a deposit taker has committed an offence against this Part
2: If this section applies, the Bank may,—
a: by notice in writing to the deposit taker, require the deposit taker to supply to the Bank, within the time specified in the notice, the information, papers, documents, records, or things specified in the notice; or
b: appoint in writing a suitably qualified person to enter and search any place and inspect, remove, and take copies of any information, papers, documents, records, or things in the possession, custody, or control of any person.
157ZK: Limitation on information to be provided
Nothing in section 157ZI(2) or 157ZJ(2)
157ZL: Limitations on entering and searching place
A person appointed under section 157ZJ(2)(b) section 157ZM
157ZM: Search warrant may be issued
1: A Judge of the High Court or a District Court Judge may issue a search warrant in terms of clause 5 Schedule 4 section 157ZJ(2)(b) this Part
2: The provisions of Schedule 4
157ZN: Privileges
1: If a person could, in a criminal proceeding, assert a privilege under sections 54 to 57 of the Evidence Act 2006 in respect of any communication or information, the person is taken to have the same privilege for the purposes of—
a: a request to supply access to accounting and other records of the deposit taker or provide information relating to those records under section 157ZI(2)
b: a notice under section 157ZJ(2)(a)
c: a search warrant issued under section 157ZM
2: Subsection (3)
3: The application by subsection (1)
a: the issue of, or the obligation to comply with, a notice under section 157ZJ(2)(a)
b: the issue or execution of a search warrant under section 157ZM
c: the admissibility, in a criminal proceeding under this Part section 157ZJ(2)(a) section 157ZM
4: A person who has a privilege under this section has the right—
a: to refuse to disclose a communication or information to which the privilege would apply if it were sought to be disclosed in a criminal proceeding; and
b: to prevent the search of any such communication or information; and
c: to require the return of such communication or information if it is seized by a person exercising a power of search pending determination of the claim to privilege.
5: If a person refuses to disclose a communication or information on the ground that it is privileged under this section, the Governor may apply to a District Court Judge for an order determining whether the claim of privilege is valid; and, for the purpose of determining any such application, the District Court Judge may require the communication or information to be produced to him or her.
6: A District Court Judge may, on the application of the Governor, disallow a privilege claimed under this section if the Judge is satisfied that the claim to privilege would, under section 67(1) of the Evidence Act 2006, be disallowed in a proceeding.
7: Section 65 of the Evidence Act 2006 (which relates to waiver of privilege) applies in respect of any privilege under this section.
8: Nothing in this section affects the application of section 60 of the Evidence Act 2006. Confidentiality of information
157ZO: Confidentiality of information
1: This section applies to—
a: information supplied or disclosed to, or obtained by,—
i: the Bank, under or for the purposes of, or in connection with, the exercise of powers conferred by this Part
ii: a person appointed by the Bank under section 157ZJ(2)(b)
b: information derived from, or based on, information referred to in paragraph (a)
c: information relating to the exercise, or possible exercise, of the powers conferred by this Part
2: The Bank, and any person appointed by the Bank under section 157ZJ(2)(b)
a: with the consent of the person to whom the information relates; or
b: to the extent that the information is available to the public under any Act, other than the Official Information Act 1982, or in a public document; or
c: for the purposes of this Part this Part
d: in connection with any proceedings for an offence against this Part
e: to the Registrar of the Companies Office or the Securities Commission; or
f: to the trustee of the deposit taker to whom the information relates; or
g: to any person who the Bank is satisfied has a proper interest in receiving the information.
3: Information to which this section applies must not be published or disclosed under subsection (2)(f) or (g)
4: A person to whom information to which this section applies is published or disclosed under subsection (2)(c)
a: for the purposes of this Part this Part
b: in accordance with any conditions that may be specified by the Bank.
5: A person to whom information to which this section applies is disclosed under subsection (2)(e), (f), or (g)
a: authorised by the Bank; or
b: necessary or desirable in connection with the exercise of any function or power conferred by any enactment.
157ZP: Person who does not comply with section 157ZO commits offence
Every person who does not comply with section 157ZO
a: in the case of an individual, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $50,000; or
b: in the case of a body corporate, to a fine not exceeding $500,000.
157ZQ: Application of Official Information Act 1982, etc
Nothing in the Official Information Act 1982 or any other Act, other than this Act, applies to information to which section 157ZO Offences and penalties
157ZR: Offences by deposit takers against this Part
Every deposit taker who breaches any of the following sections commits an offence:
a: section 157I
b: section 157L
c: section 157M
d: section 157N
e: section 157O
f: section 157Q
g: section 157R
h: section 157T
i: section 157U
j: section 157X
k: section 157Y
l: section 157ZA
m: section 157ZB
157ZS: Other offences by deposit takers against this Part
Every deposit taker commits an offence who—
a: fails to provide a report to the Bank if required to do so under section 157ZI
b: fails to provide access to accounting and other records of the deposit taker or fails to provide information relating to those records if requested to do so for the purposes of a report under section 157ZI
c: fails to provide any information, papers, documents, records, or things as and when required to do so by notice under section 157ZJ
d: fails, as and when required by this Part this Part
e: fails, as and when required by this Part this Part
f: fails, as and when required to do so by this Part this Part
g: makes any statement or supplies any paper, document, record, copy, or thing to the Bank knowing that it is false or misleading in a material particular; or
h: without reasonable excuse, obstructs or hinders an authorised person in the execution of any powers conferred on that person by or under this Part this Part
157ZT: Defence for deposit takers charged with offences against this Part
1: In any prosecution of a deposit taker for an offence against section 157ZR or 157ZS
a: the contravention was due to the act or omission of another person, or some other cause beyond the deposit taker's control; and
b: the deposit taker took reasonable precautions and exercised due diligence to avoid the contravention.
2: For the purposes of subsection (1)(a) another person
3: A deposit taker is not, without the leave of the court, entitled as part of a defence provided by this section to rely on any of the matters specified in subsection (1)(a)
157ZU: Power of court to discharge deposit taker
1: If a deposit taker is charged with an offence against section 157ZR or 157ZS
2: A direction under subsection (1) may be made at any stage of the proceeding—
a: on the motion of the court or on the application of the defendant; and
b: after giving both the prosecutor and the defendant a reasonable opportunity to be heard on the matter.
3: A discharge under this section is deemed to be an acquittal.
4: Nothing in this section limits sections 106 to 109 of the Sentencing Act 2002.
157ZV: Liability of directors
If a body corporate is convicted of an offence under section 157ZR or 157ZS
a: that the act that constituted the offence took place with his or her authority, permission, or consent; and
b: that he or she—
i: knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and
ii: failed to take reasonable steps to prevent or stop it.
157ZW: Offences by trustees against this Part
1: Every trustee who breaches any of the following sections commits an offence:
a: section 157Q
b: section 157T
c: section 157X
d: section 157ZA
e: section 157ZE
f: section 157ZF
g: section 157ZG
2: Every trustee commits an offence who makes a statement to the Bank in relation to its obligations to the Bank, including providing an attestation, knowing it to be false or misleading in a material particular.
157ZX: Penalties for offences
1: Every deposit taker who commits an offence under section 157ZR(a)
a: in the case of an individual, to imprisonment for a term not exceeding 18 months or to a fine not exceeding $200,000, or both; or
b: in the case of a body corporate, to a fine not exceeding $2,000,000.
2: Every deposit taker who commits an offence under any other provision in section 157ZR or 157ZS
a: in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $100,000, or both; or
b: in the case of a body corporate, to a fine not exceeding $1,000,000.
3: Every director who commits an offence under section 157ZV
4: Every trustee who commits an offence under any provision in section 157ZW Miscellaneous
157ZY: Matters relating to regulation-making powers under this Part
Regulations made under section 157K, 157P, 157S, 157V, or 157Z
a: prescribe clauses relating to all or any of the matters referred to in those sections that are deemed to be contained in, or adopted by, trust deeds; and
b: prescribe requirements or clauses that apply to all deposit takers; and
c: prescribe different requirements or clauses for different classes of deposit takers; and
d: prescribe different requirements or clauses for particular deposit takers.
157ZZ: Bank must review and report on operation of this Part
1: The Bank must, not later than 5 years after the commencement of this section,—
a: review the operation of this Part
b: prepare a report on the review for the Minister.
2: The report on the review must include recommendations to the Minister on whether any amendments to the Act concerning the matters dealt with in this Part
3: As soon as practicable after receiving the report, the Minister must present a copy of that report to the House of Representatives.
2: Amendments to Part 6 of principal Act
18: Section 158 repealed
Section 158
19: Funding agreements
Section 159(1)
da: Part 5D
20: New section 162 substituted
Section 162
162: Determination of annual dividend
1: The Bank must, as soon as practicable after the end of each financial year, recommend to the Minister the amount appropriately payable by the Bank to the Crown as an annual dividend in respect of the financial year.
2: The Bank must determine the amount it recommends to the Minister under subsection (1)
3: The Minister must determine the amount that the Bank must pay to the Crown as an annual dividend in respect of the financial year having regard to—
a: the recommendation of the Bank; and
b: the views of the Board of the Bank; and
c: any other relevant matters.
4: The Bank must publish in its annual report—
a: the amount it recommends to the Minister under subsection (1)
b: the determination made by the Minister under subsection (3)
21: New Part 6 heading substituted
The Part 6
6: Financial and accountability matters
.
22: New heading and sections 162AA and 162AB inserted
The following heading and sections are inserted after section 162 Accountability documents
162AA: Purpose of accountability documents
The purpose of the 3 accountability documents required under this Part
a: statement of intent: to promote the public accountability of the Bank by—
i: enabling the Crown to participate in the process of setting the Bank’s medium-term intentions and undertakings; and
ii: setting out for the House of Representatives those intentions and undertakings; and
iii: providing a base against which the Bank’s actual performance can be later assessed:
b: annual report: to—
i: report on the activities of the Bank during the previous year; and
ii: assess those activities against the intentions and undertakings set out in the latest statement of intent; and
iii: ensure the accountability of the Bank for the funds available to it:
c: financial stability report: to—
i: report on matters relating to the soundness and efficiency of the financial system and other matters associated with the Bank’s statutory prudential purposes; and
ii: allow assessments to be made of the effectiveness of the Bank’s use of its powers to achieve its statutory prudential purposes. 2004 No 115 s 138
162AB: Assessment of regulatory impacts of policies
1: The Bank must—
a: assess the expected regulatory impacts of any policy that it intends to adopt under Part 5 and Parts 5B to 5D
b: assess the regulatory impacts of the policies adopted and applied under Part 5 and Parts 5B to 5D
c: give reports on the assessments to the Minister.
2: Subsection (1)
3: The Bank may provide reports on the assessments of regulatory impacts to the Minister—
a: as part of an accountability document or other report; or
b: as a stand-alone report prepared following a request by the Minister or on the Bank's own initiative.
4: The Bank must publish every report on the assessment of regulatory impacts on an Internet site maintained by, or on behalf of, the Bank.
5: However, the Bank may omit information from any report published if it is satisfied on reasonable grounds that it is proper to omit the information on the ground of commercial confidentiality relating to a financial institution.
6: To avoid doubt, the publication of an accountability document that includes a report on the assessments of regulatory impacts satisfies the obligation in subsection (4)
23: New heading inserted
The following heading is inserted above section 162A Statement of intent
24: Content of statement of intent
1: Section 162B(1)
c: the specific impacts, outcomes, or objectives that the Bank seeks to achieve or contribute to:
d: how the Bank intends to perform its functions and conduct its operations to achieve those impacts, outcomes, or objectives:
da: if a direction has been given under section 68B .
2: Section 162B(1)
g: a statement of the principles in accordance with which the Bank must determine the amount it recommends to the Minister as appropriately payable by the Bank to the Crown as an annual dividend:
h: the main financial and non-financial measures and standards by which the future performance of the Bank may be judged:
i: the matters on which the Bank will consult or notify the Minister before making a decision, the matters on which it will report to its Minister, and the frequency of reporting:
j: any other matters that are reasonably necessary to achieve an understanding of the Bank’s intentions and direction. 2005 No 115 s 141(1)(c), (d), (f), (g), and (j)
25: Process for providing statement of intent to Minister
Section 162C
2: If the Minister’s comments include comment on the financial sector regulatory outcomes set out in the Bank’s draft statement of intent, the Bank must, when providing its final statement of intent to the Minister, also provide a response to the Minister’s comments that demonstrates how the Bank has taken those comments into account in formulating its objectives.
26: New heading inserted
The following heading is inserted above section 163 Annual reports
27: Annual reports and accounts
Section 163(2)
aaa: an assessment against the intentions, measures, and standards set out in the statement of intent prepared at the beginning of the financial year; and .
28: New heading and section 165A inserted
The following heading and section are inserted above section 166 Financial stability reports
165A: Financial stability reports
1: The Bank must, not less than twice in every calendar year,—
a: deliver a financial stability report to the Minister; and
b: publish the report on an Internet site maintained by, or on behalf of, the Bank.
2: A financial stability report must—
a: report on the soundness and efficiency of the financial system and other matters associated with the Bank’s statutory prudential purposes; and
b: contain the information necessary to allow an assessment to be made of the activities undertaken by the Bank to achieve its statutory prudential purposes under this Act and any other enactment.
3: The Minister must, as soon as practicable after receiving the report, present it to the House of Representatives.
29: New heading inserted
The following heading is inserted above section 166 Audits
30: New Schedules 3 and 4 added
The Schedules 3 and 4 set out in the Schedule


1: Title
This Act is the Energy (Fuels, Levies, and References) Amendment Act 2008.
2: Commencement
This Act comes into force on 1 October 2008.
3: Principal Act amended
This Act amends the Energy (Fuels, Levies, and References) Act 1989 2008-10-01 Energy (Fuels, Levies, and References) Act 1989
4: New section 1B inserted
The following section is inserted after section 1A
1B: Interpretation
In this Act, unless the context otherwise requires,— biofuel distribution energy engine fuel Minister Ministry Secretary
5: Section 12 repealed
Section 12
6: Control of goods or services
Section 13(2)(a) and petroleum chemicals petroleum chemicals, and engine fuels
7: New section 24 substituted
Section 24
24: Petroleum or engine fuel monitoring levy
1: A levy of 0.045 cents, or such lesser amount as may be prescribed, is payable for each complete litre of petroleum or engine fuel that is,—
a: if no Order in Council is in force under paragraph (b)
i: motor spirit; or
ii: diesel; or
iii: biodiesel; or
iv: ethyl alcohol specified under the heading Fuels
b: specified in Schedule 3 of the Customs and Excise Act 1996 and prescribed by an Order in Council made on the recommendation of the Minister.
2: The levy must be paid to the New Zealand Customs Service—
a: by the person who would be liable to pay excise duty or excise-equivalent duty under the Customs and Excise Act 1996 if any were payable; and
b: when any excise duty or excise-equivalent duty would be paid if any were payable.
3: The New Zealand Customs Service must collect the levy on behalf of the Secretary and must pay the amount collected to the Secretary.
4: In respect of the levy,—
a: sections 14, 26, and 29 to 34 apply:
b: sections 27 and 28 do not apply.
8: Offence to make incorrect statement
Section 32
1: Every person commits an offence who,—
a: in any information or particulars supplied under section 31,—
i: makes a material statement knowing that it is incorrect; or
ii: knowingly makes any material omission; or
b: resists, obstructs, deceives, or attempts to deceive any person who is exercising or attempting to exercise any power or function under section 31; or
c: refuses or fails without reasonable excuse to comply with any requirement made under paragraph (c) or (d) of section 31(1).
9: New Part 3A inserted
The following Part is inserted after Part 3
3A: Biofuel obligation
34A: Purpose of this Part
The purpose of this Part
34B: Outline of this Part
This Part
a: that each year, an obliged person’s fuel must include biofuel:
b: how to calculate the amount of biofuel required:
c: that exported fuels do not count:
d: that the required amount of biofuel may be deferred in the first 2 years of the obligation:
e: that obliged persons have choices about how to treat surpluses and shortfalls of biofuel:
f: that agreements may entitle obliged persons to count others’ biofuel towards their obligation:
g: that a civil penalty applies for not having the required biofuel.
34C: Status of examples
1: An example used in this Part is only illustrative of the provision to which it relates and it does not limit the provision.
2: If an example and a provision to which it relates are inconsistent, the provision prevails.
34D: Interpretation
In this Part actual amount of qualifying biofuel section 34M(2) biofuel percentage Schedule 5 energy content export exportation force majeure event section 34Z New Zealand obligation engine fuel section 34F obliged person section 34E petajoules qualifying biofuel section 34G required amount of qualifying biofuel section 34M(1) shortfall section 34R(3) surplus section 34R(1) Tariff trigger point section 34I year
a: means a calendar year; and
b: includes year 1 year 1 this Part year 2 year 3
34E: Definition of obliged person
1: An obliged person
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, exempt a person or a class of persons who owns obligation engine fuel at the trigger point from being an obliged person for the purposes of this Part
a: does not sell or use a significant amount of obligation engine fuel in New Zealand; and
b: is not relevant to the purposes of this Part
34F: Definition of obligation engine fuel
1: Obligation engine fuel
a: if no Order in Council is in force under subsection (2)
b: if an Order in Council is in force under subsection (2)
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, prescribe engine fuel that is obligation engine fuel.
3: The part of engine fuel that is obligation engine fuel remains so whether or not it is blended with anything else.
34G: Definition of qualifying biofuel
1: Qualifying biofuel
a: if no Order in Council is in force under subsection (2) Fuels
b: if an Order in Council is in force under subsection (2)
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, prescribe that biofuels of the following types or classes are or are not qualifying biofuels:
a: biofuels of a particular type:
b: biofuels produced from a particular type or source of biomass:
c: biofuels produced from or refined through a particular process:
d: biofuels with specified qualities:
e: biofuels meeting specified environmental or sustainability standards or specifications:
f: biofuels meeting other specified standards or specifications:
g: biofuels with a particular end use or type of end use.
3: In making a recommendation under this section, the Minister must take into account—
a: the purpose of this Part; and
b: the principles of sustainable biofuels set out in section 34H(3)
4: The part of engine fuel that is qualifying biofuel remains so whether or not it is blended with anything else.
34H: Minister must recommend Order in Council under section 34G(2) providing qualifying biofuels must be sustainable biofuels
1: The Minister must recommend the making of an Order in Council under section 34G(2)
2: The Minister must be satisfied, before making the recommendation, that the Order in Council will—
a: provide that qualifying biofuels are sustainable biofuels; and
b: be consistent with the principles of sustainable biofuels in subsection (3)
c: appropriately consider the indirect effects of biofuel production.
3: The principles of sustainable biofuels are as follows: Principle 1: Less greenhouse gas Sustainable biofuels emit significantly less greenhouse gas over their life cycle than obligation engine fuel. In relation to this principle, the Order in Council must—
a: specify a methodology for life cycle assessment of greenhouse gas emissions from obligation engine fuels; and
b: specify minimum levels of no less than 35% greenhouse gas emission reductions for qualifying biofuels in comparison to obligation engine fuel. Principle 2: Food production Sustainable biofuels do not compete with food production and are not grown on land of high value for food production. Without limitation, the following biofuels do not contravene this principle:
a: byproducts of food production described in the Order in Council:
b: ethanol from sugarcane grown in circumstances and in areas described in the Order in Council:
c: rotational oilseed crops grown not more than 12 months in any 24-month period on the same land or as otherwise specified in the Order in Council. In relation to this principle, the Order in Council must—
a: specify a methodology for assessing the effects of the production of a biofuel on food production and for assessing whether those effects amount to competition; and
b: specify a mechanism for recognising particular land (including land outside New Zealand) as being land of high value for food production. Principle 3: Biodiversity and land with high conservation value The production of sustainable biofuels does not reduce indigenous biodiversity or adversely affect land with high conservation value. In relation to this principle, the Order in Council must—
a: specify a mechanism for recognising particular land (including land outside New Zealand) as having high conservation value; and
b: specify a methodology for assessing the effects of the production of a biofuel on indigenous biodiversity and land of high conservation value.
4: If the Minister has not recommended an Order in Council referred to in subsection (1)
a: the reasons why the Minister has not recommended that such an Order in Council be made; and
b: any alternative methods to the method set out in this section of ensuring qualifying biofuels are sustainable biofuels; and
c: the time when the Minister intends to make such a recommendation.
34I: Definition of trigger point
1: Trigger point
a: if no Order in Council is in force under subsection (2)
b: if an Order in Council is in force under subsection (2)
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, set out for the purposes of subsection (1)(b)
a: the time of the trigger point for the engine fuel, which may be, for example, when the engine fuel was imported or when the engine fuel leaves the place where it is blended or produced; and
b: the information required in relation to that engine fuel; and
c: the verification and auditing procedures in relation to that engine fuel; and
d: any other provisions to ensure that engine fuel is only counted as going through the trigger point once.
34J: Governor-General may revise biofuel percentage
The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 5
34K: Consultation and confirmation requirements for Orders in Council under section 34F, 34G, 34I, or 34J
1: The Minister may only make a recommendation for the making of an Order in Council under section 34F, 34G, 34I, or 34J
2: An Order in Council made under section 34F, 34G section 34H(1) or 34I
3: An Order in Council referred to in section 34H(1)
a: 3 months after the date it is made; or
b: 1 January in the next year.
4: An Order in Council made under section 34F, 34G, or 34I
a: if made on or before 30 June in any year, expire on the close of 31 December of that year, except so far as it is expressly confirmed by Act of Parliament passed during that year; and
b: if made on or after 1 July in any year, expire on the close of 31 December in the following year, except so far as it is expressly confirmed by Act of Parliament passed before the end of that following year.
5: An Order in Council made under section 34J
6: If the Order in Council ceases to have effect under the Regulations (Disallowance) Act 1989, neither subsection (4) nor (5)
34L: Obliged person’s required amount of qualifying biofuel
Every year, each obliged person’s actual amount of qualifying biofuel must equal or exceed the person’s required amount of qualifying biofuel.
34M: Calculating required amount of qualifying biofuel and actual amount of qualifying biofuel
1: Each obliged person must calculate the person’s required amount of qualifying biofuel
a: by totalling the amount of obligation engine fuel owned by the obliged person at the trigger point at any time during that year; then
b: subtracting the amount of any exported engine fuel as required by section 34P
c: multiplying the remaining amount of obligation engine fuel by the biofuel percentage; then
d: adding any amounts of qualifying biofuel that must be added under section 34Q or 34R
e: subtracting any amounts of qualifying biofuel that may or must be subtracted because of section 34Q or 34R
2: Each obliged person must calculate the person’s actual amount of qualifying biofuel
a: by totalling the amount of qualifying biofuel owned by the obliged person at the trigger point at any time during that year; then
b: subtracting the amount of any exported biofuel as required by section 34P
c: adding any amounts of qualifying biofuel that are able to be added because of section 34T or 34U
d: subtracting any amount of qualifying biofuel that the obliged person is not entitled to count because of section 34T or 34U Example
Black Gold Limited is an obliged person. Its amount of obligation engine fuel in 2012 is 100 petajoules of petrol. As well, it has 2.5 petajoules of qualifying biofuel that year. The biofuel percentage for 2012 is 2.5%. Black Gold’s actual amount of qualifying biofuel is the same as the required amount of qualifying biofuel, because 2.5% of 100 petajoules is 2.5 petajoules. If, in a year, Black Gold has 102.5 petajoules of an engine fuel that is a blend made up of 100 petajoules of petrol and 2.5 petajoules of qualifying biofuel, Black Gold’s actual amount of qualifying biofuel would also be the same as the required amount of qualifying biofuel.
34N: Required amount of qualifying biofuels may be divided into proportions or amounts by Order in Council
1: The Governor-General may require, by Order in Council made on the recommendation of the Minister, that, for any future years, an obliged person’s required amount of qualifying biofuel must include minimum percentages of 1 or more of the following classes of biofuel:
a: qualifying biofuel of a particular type:
b: qualifying biofuel from a particular type or source of biomass:
c: qualifying biofuel produced from or refined through a particular process.
2: In a year to which an Order in Council made under subsection (1)
3: The Minister may only make a recommendation to make an Order in Council made under subsection (1)
4: An Order in Council made under subsection (1)
5: If the Order in Council ceases to have effect under the Regulations (Disallowance) Act 1989, subsection (4)
34O: Energy content values
1: Obliged persons may determine the energy content value of particular engine fuel for the purposes of the calculations in petajoules in sections 34M and 34N
2: If an energy content value is not calculated by an obliged person for any particular engine fuel, or is not verified as described in subsection (1) subsection (3)
3: The Governor-General may, by Order in Council made on the recommendation of the Minister, set out default energy content values for engine fuel.
4: In relation to energy content values for biofuel, different values may apply in relation to biofuel—
a: of a particular type or class; or
b: from a particular type or source of biomass; or
c: produced from or refined through a particular process.
5: Different energy content values may apply for engine fuel in different circumstances (for example, in different seasons).
34P: Exclusion for engine fuel exported from New Zealand
1: Engine fuel owned at the trigger point that is subsequently exported from New Zealand does not count either as obligation engine fuel or as qualifying biofuel.
2: The rules in subsection (3) the trigger point year
3: If an obliged person comes to know about the export—
a: during the trigger point year, the obliged person must subtract the amount of the exported engine fuel in the annual return for that year:
b: in the first year after the trigger point year, the obliged person must subtract the amount of the exported engine fuel in one of the following:
i: the annual return for the trigger point year if it has not yet been filed; or
ii: the annual return for the first year after the trigger point year:
c: in the second year or third year after the trigger point year, the obliged person must subtract the amount of the exported engine fuel in one of the following:
i: the annual return for the year in which the obliged person comes to know about the export; or
ii: the annual return for the year after the year in which the obliged person comes to know about the export.
4: In subsection (3) subtracting the amount of the exported engine fuel
a: if the exported engine fuel is obligation engine fuel, subtracting the export from the person’s obligation engine fuel as provided in section 34M(1)(b)
b: if the exported engine fuel is qualifying biofuel, subtracting the export from the person’s qualifying biofuel as provided in section 34M(2)(b)
5: An obliged person who fails to comply with subsection (3)
34Q: Deferring required amount of qualifying biofuel
1: An obliged person may apply in writing to the Minister for a deferral of the whole or any part of that person’s required amount of qualifying biofuel for either or both of the following years:
a: year 1 until year 2:
b: year 2 (which may include the required amount of qualifying biofuel for year 1) until year 3.
2: An application—
a: under subsection (1)(a)
b: under subsection (1)(b)
3: The Minister may grant or reject an application by notice in the Gazette
4: If an applicant is granted deferral for year 1 until year 2, the applicant must—
a: add to year 2’s required amount of qualifying biofuel both of the following:
i: the amount deferred from year 1; and
ii: 5% of year 1’s required amount of qualifying biofuel; and
b: subtract from year 1’s required amount of qualifying biofuel the amount deferred.
5: If an applicant is granted deferral for year 2 until year 3, the applicant must—
a: add to year 3’s required amount of qualifying biofuel both of the following:
i: the amount deferred from year 2; and
ii: 5% of year 2’s required amount of qualifying biofuel; and
b: subtract from year 2’s required amount of qualifying biofuel the amount deferred.
34R: Surplus and shortfall
1: If, for a year, an obliged person has an actual amount of qualifying biofuel that is greater than the person’s required amount of qualifying biofuel (a surplus
2: The amount of the surplus that may be subtracted under subsection (1)
3: If, for a year, an obliged person has an actual amount of qualifying biofuel that is less than the person’s required amount of qualifying biofuel (a shortfall
a: may be subtracted from that year’s required amount of qualifying biofuel; and, if so,—
b: must be added to the required amount of qualifying biofuel in the year after the year with a shortfall.
4: The amount of the shortfall that may be subtracted under subsection (3) Example
Texas Tea Limited has 1.9 petajoules of qualifying biofuel in 2011, but the required amount of qualifying biofuel is 2.0 petajoules. Texas Tea has a shortfall of 0.1 petajoules, which is 5% of the required amount of qualifying biofuel for that year. Texas Tea decides to subtract that shortfall from its required amount of qualifying biofuel for 2011. That means that— in 2011, Texas Tea can treat its required amount of qualifying biofuel as 1.9 petajoules; and in 2012, 0.1 petajoules must be added to Texas Tea’s required amount of qualifying biofuel.
34S: Entitlement agreements: general rules
1: An entitlement agreement must be recorded in writing.
2: Both parties to an entitlement agreement must sign a notice of entitlement.
3: A notice of entitlement must be in any prescribed form and contain any prescribed information that relates to the qualifying biofuel that is the subject of the entitlement agreement, which may include—
a: information to demonstrate the compliance of the biofuel with any Order in Council made under section 34G(2)
b: information about the extent to which the biofuel is consistent with the principles of sustainable biofuels set out in section 34H(3)
c: the type, nature, or class of the biofuel; and
d: the country of origin of the biofuel; and
e: the particular type or source of biomass from which the biofuel was produced; and
f: the particular process the biofuel was produced from or refined through; and
g: the qualities of the biofuel; and
h: any standards or specifications (including environmental or sustainability standards or specifications) that the biofuel meets; and
i: the particular end use or type of end use of the biofuel.
4: For the purposes of this Part
5: All entitlement agreements entered into in relation to any year to which an Order in Council made under section 34N(1)
6: A person who signs an entitlement agreement or notice of entitlement knowing that it is false or misleading in a material particular commits an offence.
34T: Entitlement agreements with biofuel owner who is not obliged person
1: A biofuel owner ( X Y
a: X is not entitled to reach any other entitlement agreement in relation to that qualifying biofuel; and
b: Y may add that amount of qualifying biofuel towards Y’s actual amount of qualifying biofuel.
2: For the purposes of this section, biofuel owner
3: X must certify in the notice of entitlement that X has sold or intends to sell the particular qualifying biofuel for use in New Zealand, or has used or intends to use the particular qualifying biofuel in New Zealand.
4: X must inform Y if X comes to know that the particular qualifying biofuel is exported from New Zealand. (X comes to know about the export of the qualifying biofuel if any person acting under X’s authority comes to know about the export.)
5: X commits an offence if X breaches subsection (4)
6: If X has informed Y of an export under subsection (4)
7: Y commits an offence if Y breaches subsection (6)
34U: Entitlement agreements with biofuel owner who is obliged person
1: An entitled obliged person ( A B
a: A must subtract that amount of qualifying biofuel from A’s actual amount of qualifying biofuel; and
b: B may add that amount of qualifying biofuel towards B’s actual amount of qualifying biofuel.
2: For the purposes of this section, an entitled obliged person
a: owns qualifying biofuel at the trigger point in that year; or
b: is entitled to count qualifying biofuel towards that person’s actual amount of qualifying biofuel in that year because of an entitlement agreement.
3: A must certify in the notice of entitlement that A has sold or intends to sell all A’s qualifying biofuel of that class for use in New Zealand or has used or intends to use the qualifying biofuel in New Zealand.
4: A must treat an export of any of A’s qualifying biofuel of that class as if it were an export of qualifying biofuel that is not subject to an entitlement agreement. B is not affected by the export.
5: A commits an offence if A breaches subsection (4) Example
Black Gold Limited and Texas Tea Limited are both obliged persons. In 2012, Texas Tea decides to enter into an entitlement agreement entitling Black Gold to count 2 petajoules of Texas Tea’s qualifying biofuel towards Black Gold’s actual amount of qualifying biofuel for that year. Both parties write down their agreement, and also sign a notice of entitlement. Black Gold’s annual return for 2012 records the entitlement agreement and attaches the entitlement notice. Although not intended by Texas Tea, several petajoules of Texas Tea’s qualifying biofuel is exported from New Zealand. Texas Tea must subtract the exported biofuel from its actual amount of qualifying biofuel. The export does not affect Black Gold at all. Annual returns
34V: Annual returns
1: Within 4 months after the end of a year, an obliged person must file with the Secretary an annual return, which must contain the information described in subsection (2)
2: The information to be contained in the annual return is—
a: the obliged person’s calculations under sections 34M and 34N
b: any information prescribed in regulations, which may include—
i: information to demonstrate the compliance of the obliged person's qualifying biofuel with any Order in Council made under section 34G(2)
ii: information about the extent to which the obliged person's qualifying biofuel is consistent with the principles of sustainable biofuels set out in section 34H(3)
iii: the type, nature, or class of the obliged person’s engine fuel; and
iv: the country of origin of the obliged person’s engine fuel; and
v: the particular type or source of biomass from which the obliged person’s biofuels were produced; and
vi: the particular process the obliged person’s engine fuels were produced from or refined through; and
vii: the qualities of the obliged person's engine fuel; and
viii: any standards or specifications (including environmental or sustainability standards or specifications) that the obliged person's engine fuel meets; and
ix: the particular end use or type of end use of the obliged person's engine fuel.
3: If an obliged person comes to know that an annual return that has been filed is incorrect or incomplete in any material particular, the obliged person must file a corrected and complete annual return within 4 months of coming to know about the incorrectness or incompleteness. (An obliged person comes to know about the incorrectness or incompleteness when any person under the obliged person's authority comes to know about the incorrectness or incompleteness.)
4: The situation addressed in section 34P(3) subsection (3)
5: The annual return must be signed as correct by,—
a: if the obliged person is an individual, that individual:
b: if the obliged person is a company, a director:
c: if the obliged person is not a company or an individual, a person who occupies a position equivalent to that of a director of a company (such as a trustee or a partner).
6: An obliged person must publish (in any form and manner required by regulations), by the date on which that person's annual return is due under subsection (1) or (3) subsection (2)(b)
7: An obliged person who fails to comply with subsection (1), (3), or (5)
8: An obliged person or any other person who files an annual return under subsection (1) or (3) subsection (5)
9: An offence against subsection (8)
34W: Auditing of annual returns
1: An obliged person must ensure that an auditor’s statutory declaration made in accordance with regulations is filed with the obliged person’s annual return.
2: The auditor must meet the requirements of section 199 of the Companies Act 1993.
3: An obliged person who fails to comply with subsection (1) Civil penalty
34X: Civil penalty for breaching section 34L
1: On the application of the Secretary, the High Court must order an obliged person to pay a civil penalty, as calculated under subsection (2) section 34L
2: The civil penalty for breaching section 34L (a − b) × c = p where— a is the required amount of qualifying biofuel b is the actual amount of qualifying biofuel c is one of the following rates:
a: for year 1, $20 million:
b: for year 2, $20 million:
c: for year 3, $20 million:
d: for year 4, $25 million:
e: for year 5 and for each subsequent year, $30 million p is the penalty
3: However, the Court may reduce the civil penalty (including to zero) to the extent that the Court is satisfied that the obliged person—
a: took all reasonable steps not to breach section 34L
b: breached section 34L section 34Z
4: If the obliged person is liable to pay a civil penalty under this section and is also liable to pay a civil penalty under section 34Y
5: An application for a civil penalty under this section may be made at any time within 3 years after the later of—
a: the date on which the obliged person's annual return should have been filed under section 34V(1) or (4)
b: the date on which the obliged person is convicted of an offence under section 34V(7) or (8)
34Y: Civil penalty for breaching section 34N(2)
1: On the application of the Secretary, the High Court must order an obliged person to pay a civil penalty, as calculated under subsection (2) section 34N(2)
2: The civil penalty for breaching section 34N(2) (a − b) × c = p where— a is the required amount of the class of qualifying biofuel b is the actual amount of the class of qualifying biofuel c is one of the following rates:
a: for year 1, $20 million:
b: for year 2, $20 million:
c: for year 3, $20 million:
d: for year 4, $25 million:
e: for year 5 and for each subsequent year, $30 million p is the penalty
3: However, the Court may reduce the civil penalty (including to zero) to the extent that the Court is satisfied that the obliged person—
a: took all reasonable steps not to breach section 34N(2)
b: breached section 34N(2) section 34Z
4: If an obliged person has breached section 34N(2)
5: If the obliged person is liable to pay a civil penalty or total civil penalties under this section and is also liable to pay a civil penalty under section 34X
6: An application for a civil penalty under this section may be made at any time within 3 years after the later of—
a: the date on which the obliged person's annual return should have been filed under section 34V(1) or (4)
b: the date on which the obliged person is convicted of an offence under section 34V(7) or (8)
34Z: Definition of force majeure event
For the purposes of sections 34X and 34Y force majeure event
a: fire, flood, storm, earthquake, landslide, volcanic eruption, epidemic, or other act of God:
b: explosion or nuclear, biological, or chemical contamination:
c: quarantinable disease (within the meaning given by section 2(1) of the Health Act 1956):
d: sabotage, terrorism, or act of war (whether declared or not).
34ZA: Applicable rules, procedure, and standard of proof
The proceedings under sections 34X and 34Y 2007 No 7 s 49 .
10: Regulations
1: Section 35(1)(c) specifications standards or specifications (including environmental or sustainability standards or specifications)
2: Section 35(1)
d: requiring persons who sell engine fuel or refined petroleum products to consumers to display or provide information about the price, quality, sustainability, suitability, quantity, or nature of a class or classes of refined petroleum products or engine fuel:
da: requiring persons who sell engine fuel to consumers not to promote or advertise that the engine fuel contains biofuel if the engine fuel comprises, by volume, a certain percentage of biofuel that is not more than 1%: .
3: Section 35(1)
ea: providing for accreditation, certification, and verification for the purposes of section 34O
eb: prescribing default energy content values for the purposes of section 34O
ec: prescribing or making provision for—
i: the form of notices of entitlement, which may be in any form acceptable to the Secretary:
ii: the information to be contained in or provided with notices of entitlement for the purposes of section 34S
iii: the manner in which that information is to be provided:
ed: prescribing or making provision for—
i: the form in which annual returns must be provided, which may be in any form acceptable to the Secretary:
ii: the information to be contained in or provided with annual returns for the purposes of section 34V
iii: the manner in which that information is to be provided:
ee: prescribing or making provision for the form and manner in which the information required under section 34V(6)
ef: prescribing or making provision for an auditor's statutory declaration for the purposes of section 34W(1)
eg: prescribing the records that are required to be kept under section 35B
eh: prescribing the form of search warrants issued under section 37A .
4: Section 35
1A: Different forms for the purposes of Part 3A
5: Section 35(2) or an Order in Council made under section 34F, 34G, or 34I subsection (1)
11: New sections 35A to 35D inserted
The following sections are inserted after section 35
35A: Power of Minister to require selling of engine fuel to cease
1: If the Minister is satisfied that engine fuel does not comply with regulations, the Minister may, by written notice, require the seller or distributor to—
a: cease selling the engine fuel or making it available; or
b: cease selling the engine fuel for any particular end use or making it available for any particular end use.
2: A seller or distributor who fails to comply with a Minister’s notice described in subsection (1)
35B: Keeping of records
1: Every person described in subsection (2)
2: The persons to whom subsection (1)
a: an obliged person who has filed an annual return:
b: a person who is or may be an obliged person (whether or not they have filed an annual return):
c: any person who is or may be entitled to enter into an entitlement agreement as a biofuel owner under section 34T
d: any persons engaged in the importation, distribution, production, refining, blending, exportation, or selling of petroleum, refined petroleum products, or engine fuel or goods capable of being used to make engine fuel.
3: A person who fails to keep the records that are required to be kept under subsection (1) 1996 No 27 s 95
35C: Power to inspect property, obtain information, and enter land to conduct compliance check
1: For the purposes of this section,— compliance check
a: the extent to which an obliged person is filing annual returns that comply with this Act and with any regulations:
b: the extent to which a notice of entitlement complies with this Act and with any regulations:
c: the extent to which records are being kept as required by section 35B
d: the type, nature, or class of any engine fuel or goods capable of being used to make engine fuel:
e: compliance with regulations made under this Act:
f: the extent to which information supplied or published under section 34V or 36 person liable to be checked
a: an obliged person who has filed an annual return:
b: a person who is or may be an obliged person (whether or not they have filed an annual return):
c: any person who is or may be entitled to enter into an entitlement agreement as a biofuel owner under section 34T
d: any persons engaged in the importation, distribution, production, refining, blending, exportation, or selling of petroleum, refined petroleum products, or engine fuel or goods capable of being used to make engine fuel.
2: In order to conduct a compliance check of a person liable to be checked, any person specifically or generally authorised in writing by the Secretary may, using reasonable force,—
a: subject to subsection (4)
b: inspect and examine any property and any books, accounts, vouchers, records, or documents (including records or documents held in electronic or other form):
c: require any person to produce any books, accounts, vouchers, records, or documents (including records or documents held in electronic or other form) in that person’s possession or under that person’s control, and allow copies of or extracts from those books, accounts, vouchers, records, or documents to be made or taken:
d: require any person to supply any information or particulars that may be required by the Secretary:
e: take samples of any petroleum, engine fuel, or goods capable of being used to make engine fuel.
3: The written authorisation must contain—
a: a reference to this section; and
b: the full name of the authorised person; and
c: a statement of the powers conferred on the authorised person by subsection (2)
4: Every person exercising a power of entry under subsection (2)
a: if practicable, on first entering the land, building, or place; and
b: whenever subsequently reasonably required to do so by the occupier.
5: Every person has the same privileges under this section as witnesses have in court in relation to—
a: the production to an authorised person of any books, accounts, vouchers, records, or documents; and
b: the supplying to an authorised person of any information or particulars; and
c: the answering of questions put by an authorised person.
35D: Offence to make incorrect statement
Every person commits an offence who,—
a: in any information or particulars supplied under section 35C
i: makes a material statement knowing that it is incorrect; or
ii: knowingly makes any material omission; or
b: resists, obstructs, deceives, or attempts to deceive any person who is exercising or attempting to exercise any power or function under section 35C
c: refuses or fails without reasonable excuse to comply with any requirement made under paragraph (c) or (d) section 35C(2)
12: Power of Minister to require information
1: Section 36
1: The Minister may, by notice in writing to a person described in subsection (1A)
a: the price, suitability, quantity, or nature of petroleum, refined petroleum products, or engine fuel, or goods capable of being used to make engine fuel either in New Zealand or elsewhere:
b: the price, quantity, and nature of any entitlement agreements:
c: the importation, distribution, production, refining, blending, exportation, or selling of petroleum, refined petroleum products, or engine fuel, or goods capable of being used to make engine fuel either in New Zealand or elsewhere:
d: demonstrating the compliance of the person's biofuel with any Order in Council made under section 34G(2)
e: the extent to which the person's biofuel is consistent with the principles of sustainable biofuels set out in section 34H(3)
f: the type, nature, or class of the person’s engine fuel:
g: the country of origin of the person’s engine fuel:
h: the particular type or source of biomass from which the person’s biofuels were produced:
i: the particular process the person’s engine fuels were produced from or refined through:
j: the qualities of the person's engine fuel:
k: any standards or specifications (including environmental or sustainability standards or specifications) that the person's engine fuel meets:
l: the particular end use or type of end use of the person's engine fuel.
1A: The Minister may, by notice in writing to a person described in subsection (1B) subsection (1)(d) to (l)
1B: The persons who may be the recipients of a notice under subsection (1) or (1A)
a: an obliged person who has filed an annual return:
b: a person who is or may be an obliged person (whether or not they have filed an annual return):
c: any person who is or may be entitled to enter into an entitlement agreement as a biofuel owner under section 34T
d: any persons engaged in the importation, distribution, production, refining, blending, exportation, or selling of petroleum, refined petroleum products, or engine fuel or goods capable of being used to make engine fuel.
2: Section 36(2)
a: omitting subsection (1) of this section subsection (1) or (1A)
b: inserting and manner form
13: Offences
1: Section 37(1) section 36(1) of this Act section 36(1) or (1A)
2: Section 37(1)
c: refuses or fails to furnish any information or particulars in the form and manner in which it is required by a notice under section 36(1) or (1A)
3: Section 37
2: Every person who commits an offence against subsection (1), section 32, Part 3A, section 35A, or section 35D
a: in the case of a person other than a body corporate, to a fine not exceeding $20,000:
b: in the case of a body corporate, to a fine not exceeding $200,000.
14: New heading and sections 37A to 37K inserted
The following heading and sections are inserted after section 37 Search warrants
37A: Issue of search warrants
1: Any High Court Judge, District Court Judge, Community Magistrate, Justice of the Peace, or Registrar of a District Court may issue a search warrant for any land, building, or place if satisfied, on application in writing made on oath, that there are reasonable grounds for believing that there is at that land, building, or place any thing that is evidence of 1 or more of the following:
a: the commission of an offence under this Act by any person:
b: the breach of section 34L or 34N(2)
2: The Judge, Community Magistrate, Justice, or Registrar may impose any reasonable conditions on the exercise of the warrant that he or she thinks fit.
3: The Judge may authorise the search warrant to be executed on more than 1 occasion if he or she is satisfied that this is required for the purposes for which the warrant is being issued.
37B: Powers conferred by warrant
1: A warrant authorises the person named in it—
a: to enter and search the land, building, or place specified in the warrant on 1 occasion within 14 days of the warrant’s date of issue (or more than 1 occasion if authorised under section 37A(3)
b: to request any person to assist in the execution of the warrant:
c: to use any force for gaining entry and for breaking open any article or thing that is reasonable in the circumstances:
d: to search for and seize any thing that the warrant authorises the person who is executing the warrant to search for and seize:
e: if necessary, to take copies of documents or extracts from documents that the warrant authorises the person who is executing the warrant to copy:
f: if necessary, to require a person to reproduce, or assist any person executing the warrant to reproduce in usable form, information recorded or stored in a document.
2: The powers in subsection (1)
3: The person executing the search warrant may also seize any thing that he or she, or any person assisting him or her, finds in the course of executing the warrant, if the person executing the warrant has reasonable grounds to believe that a search warrant could be obtained to search for that thing.
4: A person assisting the person executing the warrant also has the powers referred to in subsection (1)(c) to (f)
5: The warrant must be executed in accordance with any conditions specified under section 37A(2)
37C: Form and content of search warrant
A search warrant must—
a: be in the prescribed form; and
b: be directed to—
i: a member of the police by name; or
ii: any member of the police; or
iii: any Ministry employee authorised by the Secretary; and
c: contain all of the following particulars:
i: the land, building, or place that may be searched in accordance with the warrant; and
ii: the breach of section 34L or 34N(2)
iii: the provision of this Act authorising the issue of the warrant; and
iv: a description of things that are authorised to be searched for and seized; and
v: the period during which the warrant may be executed, or, if the warrant may be executed on more than 1 occasion, the number of times or the period of time over which the warrant may be executed; and
vi: any conditions specified under section 37A(2)
37D: Warrant must be produced
A person executing a warrant must—
a: have the warrant with him or her; and
b: produce it on initial entry and, if requested, at any subsequent time; and
c: identify himself or herself to the owner or occupier or person in charge of the place if that person is present; and
d: produce evidence of his or her identity. 2003 No 12 s 133
37E: Other duties of person who executes warrant
A person who executes a warrant must, when the search is completed, leave in a prominent position at the place searched or give to the owner or occupier, a written notice stating—
a: the date and time when the land, building, or place was searched; and
b: the name of the person who executed the warrant; and
c: for any seized thing, a list in accordance with section 37G 2003 No 12 s 134
37F: When alternative to list of seized things may be provided
If it is not practicable to prepare a list under section 37E
a: may, instead of leaving a list, leave a notice stating that things have been seized during the search and that, within 7 days of the search, a list will be delivered, left, or sent stating what things have been seized; and
b: must, within 7 days of the search,—
i: deliver a list to the owner or occupier; or
ii: leave a list in a prominent position at the place searched; or
iii: send a list by post to the owner or occupier of the place searched. 2003 No 12 s 135
37G: Matters that must be stated in list of seized things
A list under section 37E or 37F
a: the things that have been seized; and
b: the location from where they were seized; and
c: the location where they are being held; and
d: that the things may be returned in accordance with sections 37J and 37K
e: the extent to which a person from whom a thing was seized, or the owner of the thing, has a right to have access to any document relating to the application for a search warrant; and
f: information about the right to bring a claim that any privileged or confidential information has been seized. 2003 No 12 s 136
37H: Duty to assist
Section 198B of the Summary Proceedings Act 1957 applies with any necessary modifications to warrants issued under section 37A
37I: Power to inspect and take copies of documents, etc, obtained under warrant
The Secretary, or any person authorised by the Secretary for the purpose, may inspect and take copies of any documents or extracts from them obtained under a warrant. 2003 No 12 s 138
37J: Disposal of things seized
1: In any proceedings for an offence or a civil penalty relating to any thing seized under warrant, a court may order, either at the trial or hearing or on an application, that the thing be delivered to the person appearing to the court to be entitled to it, or that it be otherwise disposed of in any manner that the court thinks fit.
2: Any member of the police may, at any time, unless an order has been made under subsection (1)
3: An application under subsection (2)
4: On an application under subsection (2) subsection (1)
5: If proceedings for an offence relating to the thing are not brought within 3 months of seizure, any person claiming to be entitled to the thing may, after the expiry of that period, apply to a Judge for an order that it be delivered to him or her.
6: On any such application, the Judge may—
a: adjourn the application, on any terms that he or she thinks fit, for proceedings to be brought; or
b: make any order that a court may make under subsection (1) 2003 No 12 s 139
37K: Court order to be suspended on conviction or on order of civil penalty
1: If any person is convicted in any proceedings for an offence or ordered to pay a civil penalty relating to any thing for which a warrant has been issued, and any order is made under section 37J
a: in any case, until the expiration of the time for the filing of a notice of appeal or an application for leave to appeal; and
b: if a notice of appeal is filed within the time so prescribed, until the determination of the appeal; and
c: if an application for leave to appeal is filed within the time so prescribed, until the application is determined, and, if leave to appeal is granted, until the determination of the appeal.
2: If the operation of an order under section 37J 2003 No 12 s 140 .
15: New heading above section 38
The following heading is inserted above section 38 Savings and transitional provisions
16: New Schedule 5 added
The Schedule 5 set out in Schedule 1 Consequential amendments to other enactments
17: Consequential amendments to other enactments
The enactments specified in Schedule 2 2008-10-01 Building Act 2004 Injury Prevention, Rehabilitation, and Compensation Act 2001 International Energy Agreement Act 1976 Local Government Act 2002 Petroleum Demand Restraint Act 1981 Reserves Act 1977 Resource Management Act 1991 Road User Charges Act 1977 References to petroleum fuels monitoring levy
18: References to petroleum fuels monitoring levy
Every reference in an enactment or document to the petroleum fuels monitoring levy must, unless the context otherwise requires, be read as a reference to the petroleum and engine fuel monitoring levy.


1: Title
This Act is the Customs and Excise Amendment Act (No 2) 2008.
2: Commencement
This Act comes into force on 1 October 2008.
3: Principal Act amended
This Act amends the Customs and Excise Act 1996 2008-10-01 Customs and Excise Act 1996
4: Interpretation
1: The definition of duty section 2(1)
f: levies imposed by the Energy (Fuels, Levies, and References) Act 1989 .
2: Section 2(2)
d: the term ‘per litre’, in respect of the levying of excise duty, for all Excise items under the heading Fuels
e: the term ‘per litre’, in respect of the levying of excise-equivalent duty, for all Tariff items under the heading Fuels
5: Indexation of rates of excise duty and excise-equivalent duty on motor spirits by reference to diversion amounts
The definition of motor spirits section 79A(4) motor spirits
6: Regulations
Section 286(1)
a: prescribing purposes in respect of which areas used for those purposes are or are not required to be licensed as Customs controlled areas; and prescribing circumstances in respect of which areas used in any or all of those circumstances are—
i: exempted from the requirement to be licensed as a Customs controlled area (whether or not the exemption is on terms and conditions set by the Chief Executive):
ii: required to be licensed as a Customs controlled area: .
7: Schedule 3 amended
1: Note 2 to Schedule 3 The term Excise heading
2: Excise heading 99.35 in Part A of Schedule 3 2207.20.39 2207.20.49
3: Excise item number 99.35.45C in Part A of Schedule 3 or neutral spirits,
4: The Excise items under the heading Fuels Schedule 3 Fuels Part A of the Schedule of this Act
5: Tariff heading 22.07 in Part B of Schedule 3 99.75.22F 99.75.47A
6: The Tariff item 2207.20.29 in Part B of Schedule 3 2207.20.29 2207.20.32
7: The Tariff item 2207.20.39 in Part B of Schedule 3 2207.20.39 2207.20.49
8: The Tariff item 2207.20.01 in Part B of Schedule 3
a: omitting or neutral spirits
b: omitting added blended
c: omitting of Customs
9: The Tariff items under the heading Fuels Schedule 3 Fuels Part B of the Schedule of this Act