Supplementary Order Paper 2010 No 171 (Hon Simon Power, Minister)

Division of the Bill

SOP No 171 proposes to divide the Bill into the following three Bills:

• the Domestic Violence Amendment Bill (Part 1 of the Bill);
• the Care of Children Amendment Bill (Part 2 of the Bill); and
• the Adoption Amendment Bill (Part 3 of the Bill).

Supplementary Order Paper 2010 No 172 (Hon Simon Power, Minister)

Adoption Act amendments to come into force immediately

SOP No 172 changes the commencement clause to provide that Part 3 of the Bill (i..e. the amendments to the Adoption Act 1955) come into force on the day after the date on which it receives the Royal assent while the remainder of the Bill continues to come into force three months after the date of Royal assent (amending Clause 2 of the Bill).

CommentPart 3 of the Bill amends the Adoption Act 1955 to create a new offence of improperly inducing consent for the adoption of a child to be punishable by a term of imprisonment of up to 7 years. This is done to ensure that New Zealand legislation fully complies with the Optional Protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography so that it may be ratified.

Consequential amendments are also made to the Extradition Act 1999 and the Mutual Assistance in Criminal Matters Act 1992, to ensure that New Zealand can carry out its international obligations in relation to the Optional Protocol. A consequential amendment is also made to the Summary Proceedings Act 1957 (Part 3 of the Bill, Clauses 29-35).

Supplementary Order Paper 2010 No 178 (Lynne Pillay- Labour)

Protection order to continue until the child notifies the Court otherwise

The Select Committee has recommended that it be made clear that a protection order automatically continues for the benefit of a child of the applicant’s family, irrespective of their age, until that child stops ordinarily or periodically residing with the applicant, or the order sooner lapses or is discharged

SOP 178 proposes that a protection orders continue to apply for the benefit of an adult child over the age of 18 years until the adult child notifies the Court that he or she no longer wishes to be subject to the protection order or the order sooner lapses or is discharged (Part 1, Clause 6, amending Section 16 of the Domestic Violence Act 1995 by inserting new subsection (1B))

Supplementary Order Paper 2010 No 179 (Jacinda Arden - Labour)

Definition of “Child” changed to a person under 18

SOP 179 proposes that the Bill be amended to change the definition of “Child” to a person under the age of 18 years (instead of a person under 17 years) (amending Clauses 5 and 6 and New Clauses 5A, 5B, 11A and 11B).

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Extended protection under the Domestic Violence Act 1995

The Bill makes it clear that a protection order applies for the benefit of a child of an applicant until the age of 17, unless the order is sooner discharged. The Bill also clarifies that a protection order that has not lapsed or been discharged continues for the benefit of any child of a deceased applicant until the age of 17 (Part 1, Clause 6, amending Section 16 of the Domestic Violence Act 1995).

Psychological abuse under the Care of Children Act 2004

The Bill amends the Care of Children Act 2004 by providing that where a protection order has been made against a party to an application for a parenting order, the Court may only make an order allowing that party day-to-day care, or contact with, a child if the Court is satisfied that the child will be safe. If the Court is not satisfied that the child will be safe, it may make an order for supervised contact between the child and the party. This ensures that where a protection order has been made on the ground of psychological abuse, children who have been subject to, or witnessed, that abuse will be afforded additional protection (Part 2, Clauses 17-28).

Adoptions under the Adoption Act 1955

In order to ensure that New Zealand legislation fully complies with the Optional Protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography so that it may be ratified, the Bill includes a new offence under the Adoption Act 1955 of improperly inducing consent for the adoption of a child to be punishable by a term of imprisonment of up to 7 years. Consequential amendments are also made to the Extradition Act 1999 and the Mutual Assistance in Criminal Matters Act 1992, to ensure that New Zealand can carry out its international obligations in relation to the Optional Protocol. A consequential amendment is also made to the Summary Proceedings Act 1957 (Part 3, Clauses 29-35).

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Child support formula

The main change provided for by the Bill is the introduction of “a comprehensive new child support formula” with the aim of providing “a more equitable system of financial support in a variety of circumstances” and to “increase incentives for parents to meet their child support obligations”.

“The new formula bases child support payments on:

• a wider recognition of shared care; and

• the income of both parents; and

• the estimated average expenditures for raising children in New Zealand” [2]   .

Lower levels of shared care

“To deal with concerns about insufficient recognition of regular shared care of children and the costs associated with that care, the revised formula will accommodate lower levels of shared care by way of tiered thresholds, commencing with 28% of the ongoing daily care provided. The current formula recognises shared care only if it amounts to at least 40% of nights” [3]   .

Total income of both parents

“To deal with concerns about the capacity to pay, both parents’ income (less a living allowance for each parent) will be included in the formula, with the costs of raising children being apportioned according to each parent’s share of total net income. When a parent has other dependent children or is paying child support for children in other relationships, the parent’s income will be reduced for the assumed expenditure on those children, based on the same method of calculation as for other children, before the parent's child support contribution is calculated” [4]   .

Expenditures for raising children

“The formula will use a new scale of costs (expressed as income percentages) that reflects more up-to-date information on the expenditure involved in raising children (after allowing for likely tax credits). These percentages vary with the number of children, the age of the children (the percentage being higher for children over 12 years), and the total income of the parents. As income rises, the percentages progressively decline to reflect that the proportion of income spent on children declines. Given that the additional expenditure becomes increasingly discretionary as income rises, the new formula will, as currently, also include a cap on the amount of child support payable” [5]   .

Context

“While the current child support scheme provides a relatively straightforward way of calculating child support liability for the majority of parents, there are concerns that the scheme is now, in many cases, out of date. The primary assumption under the current child support scheme is that the paying parent is the sole income earner and that the receiving parent is the main care provider. However, patterns of parenting have changed since the introduction of the scheme, and it is now more common for both parents to be actively involved in raising their children. Since the scheme’s introduction, there has also been greater participation in the workforce by both parents, meaning that the principal carers of children are now more likely to be in paid work.

“More specifically, some liable parents are concerned that the scheme does not take into account their particular circumstances. For example, parents may share the care and costs of their children, but have arrangements that do not qualify as shared care for the purposes of the current child support formula. Equally, receiving parents are concerned about the non-payment of child support on the part of some paying parents, or the instability of payments. Some consider current payments to be insufficient to meet the costs of sharing their children and do not feel that they accurately reflect the true expenditure involved in raising children in New Zealand. The amendments in the Bill aim to reduce these concerns” [6]   .

Regulatory impact statement

There is a regulatory impact statement for this Bill at:

http://taxpolicy.ird.govt.nz/publications/type/ris

Children for whom child support under a formula assessment may be payable

At present, children under the age of 19 (and who meet the other elements of the definition) are qualifying children for whom child support under a formula assessment may be payable.

The Bill reduces the age to apply to children under the age of 18. However a child of 18 may be a qualifying child, but only if they are also enrolled at a registered school. This change will not be brought into effect 01 April 2014 which is one year after the commencement of the Bill (01 April 2013) (Part 1, Clause 8, amending Section 5 of the Act).

Liability to pay child support

The Bill introduces new provisions relating to applications for formula assessments of child support and the determination of who is liable to pay child support and provide, in particular, that:

• the Commissioner of Inland Revenue may assume that a qualifying child has two parents but must take account of the true situation if he or she forms the view, on reasonable grounds, that that assumption is not correct (Part 1, Clause 9, inserting New Section 7B into the Act; cf. Section 7, definition of “parent”; Section 99 (“Declarations in respect of step-parents”));

• in relation to who can apply for a formula assessment of child support, the present provision that only the sole or principal provider of ongoing daily care of a qualifying child may apply is expanded to refer to any carer of the child (who may be a parent or a non-parent) who is not living with a parent of the child in a marriage, civil union, or de facto relationship (Part 1, Clause 9, substituting Section 8 of the Act; cf. Section 363 of the Children, Young Persons, and Their Families Act 1989 (“Payment to person or organisation providing care”) continues to apply);

• in relation to formula assessments, the Bill mostly carries over existing provisions, but does change the date when legal liability to pay child support is triggered from when a “properly complete” form is received by the Commissioner to the point when the Commissioner’s assessment of liability to pay child support is completed; however the date when the form is received still marks the day on which any assessed liability begins (Part 1, Clause 9, substituting Section 10 of the Act);

• in relation to the proportion of ongoing daily care that each carer of a child provides to the child, a person who provides at least 28% of ongoing daily care is entitled under new Section 16 to a care cost percentage in relation to the child (Part 1, Clause 9, substituting Sections 14 and 15 of the Act; inserting New Section 16 of the Act; Schedule 1 of the Bill, inserting New Schedule 1 into the Act);

• in relation to identifying the liable parents and receiving carers of qualifying children, the Commissioner must determine the care cost percentages of every carer, and the income percentage of every parent, be determined; a parent whose income percentage exceeds their care cost percentage will be a liable parent; a parent whose income percentage is less than their care cost percentage will be a receiving carer; a non-parent carer who provides at least 28% of ongoing daily care, and therefore has a care cost percentage, will also be a receiving carer (Part 1, Clause 9, substituting Section 17; cf. Part 2 of the Act);

Assessment of amounts

The Bill sets out how to determine the quantum of child support liability under a formula assessment. The new formula is intended to base child support payments on a wider recognition of shared care; the income of both parents; and the estimated average expenditure for raising children in New Zealand [7]   (Part 1, Clause 11, inserting New Sections 28A-36D in Part 2 of the Act; inserting New Schedule 2 into the Act (“Expenditure on children”).

Payments and administration

The Bill resets the minimum rates of child support and domestic maintenance paid by a liable person per child support year at $848 which is adjusted each year by the “applicable inflation percentage” (Part 1, Clause 13, amending Section 72(1) of the Act (Part 5 of the Act)). The Bill also makes amendments relating to objections (Part 1, Clause 13, amending Sections 90-92 of the Act (Part 6 of the Act)). The Bill makes amendments to the power of the Commissioner, on his or her own initiative, to depart from some or all aspects of a formula assessment following an administrative review of a liable parent (Part 1, Clause 19, amending Section 96Q of the Act (Part 6B of the Act)). Appeal rights to the Family Court are widened to apply to orders varying any component, or the application of any component, of an assessment of child support under a formula assessment” (Part 1, Clauses 20 and 21, repealing Sections 100 and 101 and amending Section 106 of the Act (Part 7 of the Act)). The Bill allows the Commissioner to offset payments of child support under a formula assessment to one parent from any payments payable by the other parent (Part 1, Clause 22, inserting New Section 152B into the Act (Part 9 of the Act)).

Grounds for the Commissioner to grant a Departure from a formula assessment

The Bill makes amendments in relation to the grounds for a departure from a formula assessment where a receiving carer or liable parent asks the Commissioner to make a determination that the Act's provisions on the formula assessment of child support be departed from in relation to a child. The Bill provides for a new ground. This ground for departure is that, at any time within three years starting on the date on which the child's parents ceased to live together in a marriage, civil union, or de facto relationship, the application to the child of the Act's provisions on formula assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because a re-establishment costs situation exists. Such a situation exists if, and only if:

• the adjusted taxable income of a parent of the child for the child support year concerned includes a proportion that is no more than 30% of that income and income from work done by that parent and that, in quantity or nature or both, is additional to work that he or she did before the child's parents ceased to live together in a marriage, civil union, or de facto relationship; and

• some or all of that proportion of that income is used, or needs to be used, by a parent of the child in that child support year to meet, wholly or partly, actual and reasonable costs incurred to re-establish himself or herself, and any child or other person that he or she has a duty to maintain, after the child's parents ceased to live together in a marriage, civil union, or de facto relationship (Part 2, Clause 26 , amending Section 105 of the Act (Part 7 of the Act)).

Collection of financial support and penalties, and relief

The Bill amends the provisions relating to the automatic deduction of financial support as required by the Commissioner (Part 2, Clause 27, substituting Sections 129 to 131 and inserting New Section 131A). The Bill also makes amendments in relating to the charging of penalties for the non-payment of financial support or its late payment and in relation to the Commissioner’s discretionary power (the discretionary nature of which is re-emphasised) to refuse to enter into a payment agreement (sufficient reason for the Commissioner to so decline is stated to be “that the liable parent has not complied with one or more earlier payment agreements” and that no reasonable cause existed for that non-compliance) (Part 2, Clause 28, substituting 134 and inserting New Sections 134A-134C; Clauses 29; Clause 30, inserting New Section 135AA into the Act; (Part 8 of the Act)). In relation to mandatory relief, the Bill provides that the Commissioner is required to give relief from an initial late payment penalty (by writing it off) if a payment arrangement is entered into or made on or after 1 April 2014 and if the arrangement has operated for a reasonable period and to date there has been no default, or only default to an extent, or arising from a cause, that is reasonable (Part 2, Clause 35, inserting New Section 135GB and substituting Section 135H into the Act (Part 8 of the Act)). The Bill reforms the provisions applying to the write-off of incremental penalties (Part 2, Clauses 36-39, amending Sections 135J, 135K, 135M and 135N of the Act (Part 8 of the Act)). The Bill enables the Commissioner to write off some or all of the benefit component of an amount of child support that is payable by the liable person to the Crown, and that is unpaid and in arrear, if the receiving carer is or was a social security beneficiary at the time the child support is or was payable and the Commissioner is satisfied that recovery of that amount would place the liable person in serious hardship (Part 2, Clause 42, inserting New Section 180A into the Act (Part 11 of the Act))

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Youth Court jurisdiction

The Select Committee has recommended amendments to the provisions regarding the Youth Court’s jurisdiction over child offenders " ... to improve their clarity and reflect the policy intent". The Bill as introduced allows a child offender to be defined as a previous offender if he or she admits at a family group conference to offending and the Select Committee considered that that might ” ... allow a family group conference to be used to expose 12- and 13-year-olds to the Youth Court’s jurisdiction for future offending". The Select Committee considered it " ... preferable to rely only on offending proven before the Family Court or other Court to initiate involvement with the Youth Court". It is also recommended that a “previous offender” also includes cases where a 12- or 13-year-old has previously been convicted of murder or manslaughter in the High Court, or convicted in the High Court or a District Court for offences punishable by a maximum sentence of 14 years in prison.

It is also recommended that provisions of the Act concerning the transfer of charges from the Youth Court prior to a trial should not apply to children aged 12 or 13 years who were charged with a serious offence other than murder or manslaughter, but that:

• regardless of whether the offence was a purely indictable offence, the Youth Court would be required to hear and determine the information unless the child elected trial by jury or the Court discharged the information under Section 282 of the Act;
• certain provisions of the Summary Proceedings Act 1957 would apply to allow a child to elect trial by jury;
• If the child elected trial by jury, he or she could withdraw this choice at any time before committal without leave of the Court
• where the Court was required to or intended to commit the child for trial, or where the child wished to plead guilty at any time before committal to trial, the Court would be required (until it committed the child for trial) to continue to allow the child the opportunity to forego jury trial and elect to have the information heard and determined, or be dealt with, by the Youth Court;
• the Youth Court be empowered to discharge an information charging the child with an offence even if it were a purely indictable offence (Part 1, Clause 10, amending Section 272 by substituting new subsections (1A) and (1B); amending Clause 11 to clarify the application of Sections 273 to 276 and 282(1) of the Act).

Intensive supervision orders

The Select Committee has recommended that it be clarified that New Section 289 (which specifies that the Court should impose the least restrictive outcome adequate to the circumstances) applies when the Court considers all the orders (including intensive supervision orders) it may make in response to a breach of a judicially monitored condition of a supervision or a supervision with activity order, and that an intensive supervision order is equivalent to a supervision with activity order in the hierarchy of orders set out in the Bill (Part 1, Clause 19, amending New Section 289 by inserting new subsection (2)).

Parenting education programme orders

The Select Committee has recommended that it be specified in the Bill that when a parent of an offender is subject to a parenting order, the young offender may be included in the referral for a family group conference and, that in situations where a young offender is ordered to attend a parenting programme and fails to comply, that although he or she would be subject to the breach conditions proposed in new section 296B, a family group conference referral could still be made in respect of the child of whom the offender is a parent, guardian, or caregiver. It is also recommended that provisions in the Bill relating to varying and cancelling orders apply also to Court-ordered parenting education programme orders for the parents or guardians of a young person (Part 1, Clause 22, amending New Section 297A(4); Clause 21, amending New Section 296C(1)).

Detaining child offenders in Police custody

The Select Committee has recommended that it be specified in the Bill that a child cannot be detained in Police custody by a Youth Court order pending a hearing or determination of charges against them. It is, however, recommended that a child or young person may be detained in the custody of the chief executive or an iwi social service pending the determination of an application for breach (or variation or cancellation) of orders. The Select Committee has recommended that the provision of the Act relating to Police custody and placements in a residence, do not apply to a child as if the child were a young person (Part 1, inserting New Clause 5A (amending Sections 238(1)(e), 239(2) and 242(2) of the Act) and New Clause 5B (amending Section 239(1) of the Act)).

Breaching, varying, and cancelling orders

The Select Committee has recommended amendments to the standard provisions (applied by the Bill to young offenders) relating to breach and variation or cancellation of orders to:

• empower the Youth Court to issue arrest warrants for young offenders who fail to appear on breach applications (including offenders who cannot be served with the application or who cannot be located);
• empower the Youth Court to suspend the operation of an order at any time after an application under New Sections 296B or 296C of the Act is made and before the disposal of that application; and
• empower the Youth Court to make bail or custody orders under Section 238 of the Act when an order is suspended;
• empower the Police or a social worker to detain a young offender for the purpose of returning them to the applicable curfew address; and
• empower the Police to arrest without a warrant a young offender who is in breach of curfew (Part 1, Clause 21, amending New Sections 296A - 296C and inserting New Sections 296BA, 296BB and 296HA).

Placing child offenders in residences

The Bill as introduced requires the chief executive to consider, before placing a young offender aged 12 or 13 years in a residence, all reasonably practicable less restrictive alternatives.

The Select Committee has recommended that it be specified in the Bill that the provision does in fact relate to placements of 12- and 13-year-olds in youth justice residences only. The Select Committee has also recommended that a definition of "youth justice residence" be placed in the Bill (Part 1, Clause 39, amending Section 365 of the Act).

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The need for the Bill

• In a recent media release [2]   , the Minister of Social Development and Employment, Hon Ruth Dyson said that this Bill would make the CYPF 1989 Act " ... more responsive to the needs of children and young people needing care and protection", it would " ... improve the participation of children and young people in decisions about them", and it would " ... ensure delivery of the right services at the right time to families in need and appropriate responses to children including those with disabilities". The Minister also said that the Bill would improve support for those moving out of the care and protection system".

Definition of "young person"

The Bill amends the definition of "young person" to raise the upper age to 18 years and makes consequential amendments to the Act (Part 1, Clause 4, amending Section 2(1) of the CYPF Act, substituting definition of "young person").

Comment

This extends the coverage of the CYPF Act to include 17-year-olds, bringing the Act into line with the United Nations Convention on the Rights of the Child. (For the purposes of that Convention, a child means a human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier: article 1.)

Duties of chief executive

The Bill places a new duty on the chief executive to have procedures in place to receive, hear, determine, and address complaints from children and young persons in respect of whom action has been taken under the principal Act, or their families, whanau, or family groups (Part 1, Clause 5

amending Section 7 of the CYPF).

Chief social worker

The Bill provides for the formal appointment or designation of a chief social worker by the chief executive and sets out the chief social worker's functions. These include the conduct of practice reviews. The Bill gives the chief social worker the ability to delegate his or her statutory functions to any other suitable employee of the department. The chief executive is given power to arrange for the chief social worker or any other person to conduct a review of any practice of the department in relation to the CYPF Act if, in the chief executive's opinion, a review is in the public interest, or is required to improve the professional performance of social workers or other employees of the department, or a review would promote the best interests of children and young persons, or their families or family groups. Evidence given in the course of a review would be privileged and confidential and publication of review proceedings would be limited. The Bill makes it an offence to publish confidential information or particulars that identify a person subject to, or who participates in, a review (Part 1, Clause 6, inserting New Sections 7A - 7C into the CYPF Act).

Views of child or young person

The Bill makes amendments in relation to the ascertaining of the views of a child or young person in proceedings under the CYPF Act. The child or young person must be encouraged and assisted to participate in the proceedings or process to the degree appropriate to his or her age and level of maturity unless that participation would, in the opinion of a person specified in the Bill [3]   , be inappropriate having regard to the matters to be heard or considered. The child or young person must be given reasonable opportunities to express views on matters affecting that child or young person. Any views the child or young person expresses (either directly or through a representative) must be taken into account. Various amendments are made to the CYPF Act to emphasise the importance of this consultation (Part 1, Clause 8, substituting Section 11 of the CYPF Act; Clause 16, amending Section 29 of the CYPF Act; Clause 20 amending Section 130 of the CYPF Act; Clause 28 re-enacting and amending Section 250 of the CYPF Act).

Reports of child abuse

The Bill provides for the initial assessment of a report of ill-treatment or neglect of a child or young person made under Section 15 of the CYPF Act. The social worker or member of Police who receives the report must undertake or arrange an assessment. Detailed procedures are prescribed for further investigations. A care and protection co-ordinator must be notified if, after further investigation, the social worker or member of the Police believes the child is in need of care and protection. The Bill provides in detail for the matters that must be considered and who must be consulted in these processes (Part 1, Clause 10, substituting Section 17 of the CYPF Act and inserting new Sections 17A - 17F into that Act).

Family group conferences

The Bill makes various changes to the provisions of the Act relating to family group conferences including who must be consulted on date, attendees and procedure before the conference takes place (particularly, the child or young person concerned and family). The care and protection co-ordinator must make relevant information available to care and protection family group conferences. Amendments are made in respect of the enforcement of family group conference decisions (Part 1, Clause 12, substituting Section 21 of the CYPF Act; Clause 13, amending Section 22 of the CYPF Act; Clause 14, amending Section 23 of the CYPF Act; Clause 15, amending Section 28 of the CYPF Act; Clause 30, amending Section 255 of the CYPF Act; Clause 32 inserting New Section 269A into the CYPF Act).

Strengthening victims' provisions

The Bill provides that measures for dealing with offending by children and young persons should not only (as currently) have regard to, but should instead recognise properly, the interests of any victims of that offending (for example, by including consideration of whether reparation should be made to those victims) (Clause 27 substituting paragraph (g) of Section 208 of the CYPF Act; Clause 47 substituting Section 320(5) of the CYPF Act; Clause 50 inserting New Sections 437A and 437B into the CYPF Act).

Orders and penalties

The Bill makes various detailed technical amendments in relation to Youth Court orders and Supervision orders (Clause 34 amending Section 282 of the CYPF Act, Clause 35(1) and (2) amending Section 283 of the CYPF Act; Clause 35(3) amending Section 283(o) of the CYPF Act;; Clause 37 inserting New Section 289A into the CYPF Act; Clause 39, substituting Section 296 of the CYPF Act (relating to the expiry of Youth Court orders)).

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Changes to the Act

The changes “include reducing the presence period from 5 years to 2 years for regular members of the New Zealand Defence Force, making better provision for families that travel overseas together for the Government or an international organisation, and providing the Minister of Internal Affairs with an ability to grant citizenship to applicants convicted of very minor offences. A number of other minor amendments clarify and improve existing provisions in the Citizenship Act 1977” [2]   .

Regulatory impact statement

The Department of Internal Affairs produced a regulatory impact statement in November 2009:

• http://www.dia.govt.nz/diawebsite.nsf/wpg_URL/Resource-material-Regulatory-Impact-Statements-Index

• http://www.treasury.govt.nz/publications/informationreleases/ris

Persons born on board ships

Section 2(3)(a) and (b) of the Act provides that a person born aboard a registered ship or aircraft shall be deemed to have been born in the place in which the ship or aircraft was registered and a person born aboard an unregistered ship or aircraft of the Government of a country shall be deemed to have been born in that country.

The Bill provides that, regardless of Sections 3(a) and (b) a person is to be treated as having been born:

• in New Zealand, if the person was born on a ship (whether registered or unregistered) within the territorial waters of New Zealand or aboard an aircraft (whether registered or unregistered) in the airspace within the territorial limits of New Zealand;

• in the Cook Islands, Niue, or Tokelau (as the case may be), if the person was born on a ship (whether registered or unregistered) within the territorial waters of the Cook Islands, Niue, or Tokelau (as the case may be) or aboard an aircraft (whether registered or unregistered) in the airspace within the territorial limits of the Cook Islands, Niue or Tokelau (Clause 4, amending Section 2 by adding new subsection (4)).

Citizenship by descent

The Bill provides that a person born outside New Zealand before 1 January 1970 to a mother who was a New Zealand citizen otherwise than by descent is a New Zealand citizen and may apply to have his or her citizenship registered in accordance with regulations made under the Act (Clause 7, inserting New Section 7A into the Act).

Comment

The applicable regulation is Regulation 11 of the Citizenship Regulations 2002.

Citizenship by grant

The Bill introduces amendments relating to citizenship by grant which are basically a rewriting of the present law with the following main changes:

• setting out particular presence requirements (citizenship by grant depends on periods of “presence” in New Zealand) for applicants who are members of the regular forces within the meaning of the Defence Act 1990 as follows,

• • presence in New Zealand for a minimum of 540 days during the previous two years immediately before the date of the application, and

• • entitled to be in New Zealand indefinitely during each of those 540 days, and

• • a member of the regular forces during each of those 540 days;

• makes provision in relation to presence in the Cook Islands, Niue, or Tokelau (provided “that the basis on which the applicant received the entitlement to reside indefinitely in the Cook Islands, Niue, or Tokelau was not contrary to the interests of New Zealand”) and takes into account periods of absence from those countries in the public service of those countries;

• enables the Minister may waive the requirement in new section 8(1)(h) relating to knowledge of the English language in certain circumstances (Part 1, substituting Section 8 of the Act and inserting New Sections 8A-8F).

Disqualifying convictions

Section 9A of the Act provides, in general, that the Minister must not authorise a grant of citizenship to a person convicted to a term of imprisonment of five years or (inter alia) “within the preceding 3 years the person was convicted of an offence but did not receive a sentence of imprisonment”.

The Bill replaces this with the following: “within the following 3 years, the person was convicted of an offence punishable by imprisonment for a term of 3 months or more but did not receive a sentence of imprisonment” (Part 1, Clause 10 amending Section 9A(1) of the Act by substituting paragraph (c)).

Oath in official language

The Act enables the Minister to make the grant of New Zealand citizenship conditional on the applicant taking an oath of allegiance or an affirmation to similar effect.

The Bill provides that the oath must be taken in an official language of New Zealand (i.e. English, te reo Māori and New Zealand Sign Language are the official languages) (Part 1, Clause 12, amending Section 11 of the Act by inserting new subsection (1A)).

Renunciation

The Bill provides reforms the law relating to renunciation of New Zealand citizenship.

Currently Section 15(1) provides that “a New Zealand citizen who has attained the age of 18 years and is of full capacity and who is recognised by the law of another country as a citizen of that country may, at any time, make a declaration of renunciation of his New Zealand citizenship in the prescribed manner”.

The Bill replaces this provision and provides that a person who has attained the age of 18 years and who is of full capacity may make a declaration of renunciation if:

• (a) he or she is recognised by the law of another country as a citizen of that country; or

• (b) being a citizen of New Zealand prevents the person from becoming a citizen of another country and on the renunciation of the person's New Zealand citizenship he or she will, as soon as practicable, become a citizen of that other country.

The Bill also provides that the Minister may waive either or both of these requirements if it is in the best interests of the person to do so and one or other of the two conditions ((a) or (b) apply (Part 1, Clause 13, amending Section 15 by substituting subsection (1) and by inserting new subsection (1A)).

Deprivation of New Zealand citizenship in cases of fraud, etc.

The Bill provides that the Minister may deprive a person of his or her New Zealand citizenship if the person has committed an offence punishable by a term of imprisonment before acquiring New Zealand citizenship but was convicted in relation to that offence after the person acquired New Zealand citizenship (Part 1, Clause 14, amending Section 17 of the Act by substituting new subsection (2) and inserting new subsection (2A)).

Return of certificates

The Bill provides that certain persons must return certificates of New Zealand citizenship to the Secretary for Internal Affairs when they have renounced, or been deprive of their citizenship or have had their names removed from the register of citizenship. Persons commit an offence, and are liable on summary conviction to a term of imprisonment not exceeding 3 months or to a fine of $2,000, when they, knowingly and without reasonable excuse, fail to return such a certificate to the Secretary (Part 1, Clause 15 (inserting New Section 20A into the Act) and Clause 16 (amending Section 27 of the Act by inserting new subsection (3)).

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Commencement

The Bill provides that the provisions which implement the Cape Town Convention and the Aircraft Protocol, come into force on a date to be appointed by the Governor-General by Order in Council (Part 1, Clauses 12 to 14) and the rest of the clauses come into force on 1 August 2010 (Clause 2).

Rule Making under the Civil Aviation Act 1990

The Bill provides that an ordinary rule may require or provide for a matter to be determined, undertaken, or approved by the Authority, the Director, or other persons, or empower the Authority, the Director, or any other person to impose requirements or conditions. Amendments are also made to the provisions relating to matters which must be taken into account when ordinary rules are made (the requirement to take into is extended to recommending the making of a rule) and the consultation requirements which must be observed before ordinary rules are made is amended to require the Minister to publish a notice of his or her intention to make the rule and to consult with certain persons and the Environmental Risk Management Authority (Part 1, Clause 5, amending Section 28 of the Act by substituting subsection (5) and inserting new subsection (5A' Clause 6, amending Section 3392) of the Act; Clause 7, amending Section 34 of the Act)).

Comment

The present provision relating to the making of ordinary rules is not very straightforwardly expressed (Section 28(5) of the Act): " No ordinary rule shall be invalid because it confers any discretion upon or allows any matter to be determined or approved by the Authority or the Director or any other person, or allows the Authority or the Director or any other person to impose requirements as to the performance of any activities".

Copyright: © NZ Parliamentary Library, 2010

Except for educational purposes permitted under the Copyright Act 1994, no part of this document may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, other than by Members of Parliament in the course of their official duties, without the consent of the Parliamentary Librarian, Parliament Buildings, Wellington, New Zealand.This document may also be available through commercial online services and may be viewed and reproduced in accordance with the conditions applicable to those services.

Purpose

The Select Committee has recommended a new purpose clause in the Act. This provides that the purpose of the Bill is to :

• "enable New Zealand to meet its international obligations under the Convention and the Protocol, including (but not limited to) its obligations under Article 3.1 of the Protocol to retire Kyoto units equal to the number of tonnes of carbon dioxide equivalent of human-induced greenhouse gases emitted from the sources listed in Annex A of the Protocol in New Zealand in the first commitment period; and its obligation to report to the Conference of the Parties via the Secretariat under Article 7 of the Protocol and Article 12 of the Convention;
• provide for the implementation, operation and administration of a greenhouse gas emissions trading scheme in New Zealand that supports and encourages global efforts to reduce greenhouse gas emissions by assisting New Zealand to meet its international obligations under the Convention and the Protocol, and by reducing New Zealand's net emissions below business-as-usual level.
• The Select Committee has recommended that the term "business-as-usual levels" be defined as the levels of New Zealand's greenhouse gas emissions, estimated by a Minister or chief executive with powers or functions under the Act at any particular point in time, as if the greenhouse gas emissions trading scheme provided for under the Act had not been implemented (Part 1, Clause 5).

Meaning of "forest land"

The Select Committee has recommended minor amendments to the definition of the term "forest land" and other definitions in the Bill (Part 1, Clause 6, definition of "forest land").

Staged entry into the NZ ETS

The Select Committee has recommended that the entry dates for various sectors into the NZ ETS be: Liquid fossil fuels (01 January 2011); imported hydro fluorocarbons (HFCs) and per fluorocarbons (PFCs) (01 January 2013); mandatory reporting in the agriculture and waste sectors (2012) (Part 1, Clause 4, inserting New Section 2A into the Act).

Copyright: © NZ Parliamentary Library, 2008

Except for educational purposes permitted under the Copyright Act 1994, no part of this document may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, other than by Members of Parliament in the course of their official duties, without the consent of the Parliamentary Librarian, Parliament Buildings, Wellington, New Zealand.This document may also be available through commercial online services and may be viewed and reproduced in accordance with the conditions applicable to those services.