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Overseas Investment (Owning Our Own Rural Land) Amendment Bill (Consistent) (Section 19(1)) [2014] NZBORARp 1 (30 January 2014)

Last Updated: 24 March 2019

Overseas Investment (Owning Our Own Rural Land) Amendment Bill

30 January 2014 Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Overseas Investment (Owning Our Own Rural Land) Amendment Bill

1. We have considered whether the Overseas Investment (Owning Our Own Rural Land)

Amendment Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New

Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).

2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with s 19(1) of the Bill of Rights, freedom from discrimination on the basis of national origin. Our analysis is set out below.
   

The Bill

3. The Bill seeks to amend the Overseas Investment Act 2005 (‘the Act’) to “substantially

limit” the sale of rural land of more than 5 hectares to overseas persons (cl 4). Under the Act, the relevant Ministers must consent before an overseas person may acquire an estate or interest (legal or equitable) in “sensitive land”. Included in the category of sensitive land is 5 hectares or more of rural land. The Act sets out the criteria the relevant Ministers must consider before granting such consent.

4. The Bill introduces specific criteria that the relevant Ministers must consider before granting consent to 5 hectares or more of rural land and consent conditions that must be included if relevant (cl 8). Under the new criteria the relevant Ministers must be satisfied that the overseas investment will, or is likely to, result in the creation of a substantial number of additional jobs in New Zealand or a substantial increase in exports (new ss 16(1)(e)(iii), 17A(2)(a) and (b)). The additional jobs or increase in exports are to be additional to what is likely to occur in the foreseeable future if a New Zealander purchased the land (new s 17A(3)). The conditions include mechanisms for protecting the environment and the historic heritage of the land.
   
5. The Bill also provides that where an overseas person is intending to reside in New Zealand indefinitely, the Minister must impose a condition on the consent that the overseas person becomes a New Zealand resident within a specified period of time.

Consistency of the Bill with the Bill of Rights Act

Section 19 – Freedom from discrimination

6. Section 19(1) of the Bill of Rights Act provides that everyone has the right to freedom from discrimination on the prohibited grounds of discrimination in the Human Rights Act 1993.

The prohibited grounds of discrimination include ethnic or national origin, which includes nationality or citizenship.

7. The Bill increases the restrictions on “overseas persons” investing in 5 hectares or more of rural land. The Act defines “overseas persons” as individuals who are “neither a New Zealand citizen nor ordinarily resident in New Zealand” (s 7). Various body corporates, partnerships, trusts and unit trusts are also considered to be “overseas persons”.
   
8. We have considered whether the Bill’s different treatment of non-citizens who are not ordinarily resident in New Zealand compared with citizens and those ordinarily resident in New Zealand is discrimination on the basis of national origin.
   
9. It is arguable that s 19(1) is not engaged. The Act distinguishes between people based on whether they are “ordinarily resident” in New Zealand, rather than purely on the basis of their national or ethnic origins.
   
10. In November 2004, we considered this issue in relation to the Overseas Investment Bill (which became the Act) and again in July 2012, in relation to the Overseas Investment (Restriction on Foreign Ownership of Land) Amendment Bill. In both cases we concluded that, if s 19(1) was engaged and limited, it was a justified limitation under s 5 of the Bill of Rights Act. In coming to that conclusion we noted that the restriction on foreign ownership applied only to sensitive land, and that the limitation on the right was rationally connected to the Bill’s objective (to control ownership of sensitive New Zealand land by persons who are based offshore and whose connection with New Zealand is tenuous). Our analysis of the Bill is not materially different and we come to the same conclusion.
    

Conclusion

11. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Tania Warburton

Acting Chief Legal Counsel Office of Legal Counsel

Disclaimer

In addition to the general disclaimer for all documents on this website, please note the following:

This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Overseas Investment (Owning Our Own Rural Land) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.