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After postponing the licensing of insolvency practitioners due to COVID-19, the licensing regime and the remaining provisions of the Insolvency Practitioners Regulation Act 2019 (IPRA) will now commence on 1 September 2020. What has already come into force? (See Article)

The Advertising Standards Authority Complaints Board – New Zealand’s advertising watch-dog – has released its first substantive decision on the requirements applicable to influencer advertising. Elements of the decision might come as a surprise to businesses that deal with influencers. The ASA’s recent decision on this must be understood in the context of the underlying Advertising Standards Code Rules. (See Article)

When the pandemic broke, hand brakes were swiftly pulled, and just like that, the record-breaking bull run of M&A activity was over. It's a very different landscape now credit has become tighter and investors have become more measured. Conventional notions of deal certainty and risk are being severely challenged by an unfamiliar and uncertain environment, and even industry veterans are starting to wonder how long the fear of the unknown will linger. (See Article)

The FMA has signalled its intentions for the full licensing of financial advice providers (‘FAPs’) under the new regulatory regime for financial advice by releasing a consultation paper on the proposed standard conditions for those licences and classes of financial advice service. The standard licence conditions proposed provide us with one of the final pieces of the jigsaw puzzle that will make up the regulatory compliance obligations for FAPs once the new regime is finally into full swing. (See Article)

After much anticipation, the Privacy Bill has passed its third and final reading and is set to be signed into law, with a commencement date for most provisions of 1 December 2020. We’ve published numerous articles on the Bill’s journey and the general outlook for privacy law in New Zealand, including information about what businesses will need to know to prepare for the new Act coming into force. (See Article)

The Government has announced it will proceed with a series of changes to the Commerce Act 1986 in 2021 including: Amending the test for determining whether a business has taken advantage of market power (section 36) to an ‘effects’ based test in line with Australia. Removing exceptions that shield some types of intellectual property related conduct. Increasing penalties for firms that engage in anti-competitive mergers or acquisitions. (See Article)

The further we move into the digital world, the more obvious it becomes that you cannot leave your privacy management on cruise control. Your business needs a privacy breach plan. And you need to know which levers to pull in a crisis. The latest developments in the Capital One saga - which involved a privacy breach that saw over 100 million people’s data compromised across the US and Canada - are a lesson that crisis management expertise is indispensable when dealing with a breach. Capital One had arranged protection, but not sufficient to block an enormous breach, and they had done so in a way that left them liable to have their shortcomings exposed to the fullest public gaze. Please see full article below for more information. (See Article)

In the latest edition of The Property Lawyer, we examine the avenues available to commercial landlords and tenants for resolving rent abatement disputes that have arisen as a result of the Government's COVID-19 safety measures. (Note: Since writing, there have been further Government announcements that may impact commercial landlords’ and tenants’ rent abatement negotiations but such laws have not yet been passed.) Please see full article below for more information. (See Article)

A liquidated damages clause appears in nearly all construction contracts (for example, 10.5 of NZS 3910:2013). Where the contractor fails to complete the contract works by the agreed due date for completion, it is required to pay the stipulated daily or weekly amount in damages to the principal until such time as the works are completed. There are limited avenues for a contractor challenging the application of liquidated damages and so it has become commonplace for disputes over whether the liquidated damages are a genuine pre-estimate of loss and therefore, enforceable, or whether the clause is void as a penalty. This would still leave the contractor exposed to general damages, but these would need to be proven by the principal. (See Article)

There were some significant announcements for the construction sector in Budget 2020: NZ$3 billion in additional infrastructure spending; 8000 more homes to be built by Kainga Ora; a range of training initiatives. All of that will be welcome and much-needed support for the sector. (See Article)

The Government has now released its decisions on a number of freshwater policy initiatives that were first revealed in September 2019 under the banner ‘Essential Freshwater – Action for Healthy Waterways’. The announcements see the new National Policy Statement, National Environmental Standards and Stock Regulations proceed largely unchanged, but with notable tweaks to the time frames, nutrient limits, and regulatory mechanisms. Most notably, dissolved organic nitrogen and dissolved reactive phosphorous will no longer have ‘national bottom lines’, restrictions on farm intensification and stock exclusion requirements will both be relaxed slightly in response to submissions, and the Resource Management Act (RMA) will be amended to include a new regime for farm management plans. (See Article)

Closely following the ‘land-mark’ decision from the Employment Court determining that a courier driver, Mr Leota, was an employee of Parcel Express Limited, the Employment Court has released another example of how the employment relationship status of an individual will be determined, this time finding that four commission based taxi drivers were employees. (See Article)

There’s no question that helping the economy stabilise and recover was the first and pressing priority for the government, and the predominance of the ongoing COVID-19 support package was no surprise. But equally there can surely have been few greater opportunities than this to act boldly on the climate crisis, and for now, at least, that appears to be a missed opportunity. There was little funding for green investment or any kind of adaptation that might contribute to lowering potential emissions of economy of the nation’s economic activities. Please see full hub below for more information. (See Article)

The speed with which the Government and regulators responded to the regulatory compliance challenges thrown at New Zealand by the COVID-19 lockdown has been impressive. Nowhere was this more apparent than in the tightly prescribed environment within which financial service providers must operate. Much of the relief provided in response to the Epidemic Preparedness (COVID-19) Notice 2020 (COVID Notice) was on a short term basis. As yet, there has been no suggestion that any consumer harm has arisen as a result of this increased flexibility and the embracing of modern technology to cater for lockdown and remote working practices. That raises the question – do these emergency responses actually highlight the fact that some of the regulatory red-tape faced by our financial service provider sector is no longer fit for purpose? Please see full hub below for more information. (See Article)

The new normal for construction is a large lurch, and lowered productivity will be unavoidable. New standards and protocols essentially add up to the familiar prescription: adequate distancing, comprehensive record keeping, due care. What that will entail varies between construction type, site size, and the nature of activity, but clearly it will not be possible to maintain levels of productivity that were being achieved before lockdown. (See Article)

As recently announced by the Government, certain amendments to the Overseas Investment Act 2005 (‘Act’) will be fast-tracked into law in response to COVID-19. A number of significant changes were already proposed for the Act before New Zealand went into ‘lockdown’ in late March – but now, some of these initiatives, including a particular ‘urgent’ measure, will be implemented ahead of schedule. (See Article)

The Prime Minister announced on 11 May that we will move to Alert Level 2 on Thursday 14 May 2020. Last week the government provided guidance on what Alert Level 2 will look like. In summary, while there is more freedom of movement in Alert Level 2, the core message is to play it safe. (See Article)

Grant Robertson’s rainy day Budget just poured billions – with many more billions still to come – into saving and creating jobs. If the plan works (and it is still being developed to match rapidly changing economic circumstances) then New Zealand’s economy may be spared the worst of what the Prime Minister calls ‘dire global predictions’. Please see full article below for more information. (See Article)

Cabinet has released a paper which provides further detail on the government’s proposal to fast track consenting processes for various projects to provide immediate economic stimulus. (See Article)

Last week, the Prime Minister provided guidance on what Alert Level 2 will look like and today businesses will be pleased to be getting back to work in the ‘new normal’ as we move to Alert Level 2. However, many won’t have had much of an opportunity to consider the practicalities around a return to work. Here are some things you should make sure you consider before opening the doors. (See Article)

While most have been focused on the implications of COVID-19 on employment relationships, the Employment Court has released what has been described as a “land-mark” decision with respect to the classification of employment relationships, determining that a courier driver ostensibly engaged as a contractor was in fact an employee. (See Article)

In our mid-March consumer credit update, we outlined the latest legislative changes from the consumer credit law reform programme, and marked out some key dates in the implementation timeline. That was released just before the COVID-19 lockdown hit us, and the world as we knew it changed – including the timetable for implementing some of the new rules and regulations in the consumer finance space. (See Article)

Businesses will be eager to return to work following Monday’s announcement that we will move to alert level 2 from Thursday 14 May 2020. Under alert level 2 most commercial premises will be able to open if they can do so safely and in accordance with Government guidance. It is important for commercial landlords and tenants to remember the following points relating to health and safety and leasing arrangements generally. (See Article)

Businesses of all shapes and sizes are being pushed to the brink. As the revenue drops and the outgoings continue, even businesses with strong balance sheets and healthy working capital accounts are feeling the pinch. The old saying that ‘cash is king’ has never been more relevant. (See Article)

A timely announcement from the government has proposed further legislative changes to clarify the practicalities of virtual hearings under the Resource Management Act 1991 (RMA) during New Zealand’s response to COVID-19: Virtual hearings: Specifically authorises council RMA hearings to be conducted using a ‘remote access facility’ (audio/ audiovisual link or similar) if the council considers it ‘appropriate and fair to do so’ and is satisfied that the necessary remote facilities are available. (See Article)

At the beginning of last month, the government announced that it would introduce a number of changes to the Companies Act 1993. These changes included a ‘safe harbour’ scheme for directors in respect of their duties under sections 135 and 136 of the Act and a business debt hibernation scheme. Now that Parliament is sitting again, the government has introduced a Bill to bring these changes into effect and we expect it to come into force in the next couple of weeks. In this article, we set out a few key details in the Bill. (See Article)

Now that we are in alert level 3, many more businesses are able to return to work if they can do while ‘operating safely’. It is timely to bear in mind the following important points relating to workplace health and safety. Under the HSW Act, a PCBU must engage with workers who are directly affected by a matter relating to work health or safety. That includes when the PCBU is making decisions about how to eliminate or minimise risks, including those related to COVID-19. Any changes or proposed changes to health and safety policies and procedures to deal with the return to work at alert level 3 should be discussed with workers in accordance with your existing worker engagement procedures. (See Article)

The impacts of COVID-19 have had far-reaching effects on businesses, both in terms of the economic effects and capacity to attend to day-to-day matters. The Intellectual Property Office of New Zealand (‘IPONZ’) has recognised the material impact COVID-19 continues to have on business's and the community, and has adjusted its approach to deadlines to reflect the disruption. Accordingly, IPONZ has advised that certain due dates for cases and tasks will be automatically extended – for example, deadlines to respond to trade mark compliance reports. (See Article)

Yesterday the government released the eagerly awaited details of its proposal to fast-track consenting processes for projects, aimed at kick starting New Zealand’s economic recovery. The new legislation, due to be passed in June, will largely remove the public submission and hearing process for those projects approved by the Minister for the Environment, David Parker. Instead, small panels of experts, chaired by an Environment Court Judge or senior lawyers, will decide whether consent should be granted. The proposed legislation will contain a two-year sunset clause and will be repealed in June 2022 if not before. (See Article)

Issue number #45-2 (March 2020) of publication New Zealand International Review is now available