NEW ZEALAND Law and Practice Contributed by: Ashton Goatley, Henry Willis, Sarah Keene and Erin Hickey, Webb Henderson
Webb Henderson Level 17 188 Quay Street Auckland Central 1010 New Zealand Tel: +64 9 970 4100 Email: enquiries@webbhenderson.com Web: www.webbhenderson.com
1. Legal System and Regulatory Framework 1.1 Legal System
The exercise, refusal to exercise or purported exercise of a governmental (ie, executive) power or discretion under an Act of Parliament or legislative instrument may be challenged by a person affected by it – this is called “judicial review”. 1.2 Regulatory Framework for FDI Investment by “overseas persons” and their associ - ates in certain categories of assets in New Zealand is regulated under the Overseas Investment Act 2005 (the “OI Act”). The Overseas Investment Office (OIO) is the New Zealand regulator responsible for the admin - istration of the OI Act. Decisions under the OI Act are made either by government ministers or the OIO under delegated authority. A transaction may require consent from the OIO if an overseas person or associate directly or indirectly acquires an ownership or control interest in: • significant business assets in New Zealand with a value over NZD100 million (higher thresholds are available in some circumstances); • “sensitive land”; or • a fishing quota. The OI Act also provides for the review of transactions that could pose significant national security and public order risks. To enforce the OI Act, the OIO has a range of powers: • to prevent transactions from proceeding; • to require transactions to be unwound; and • to impose penalties.
New Zealand’s legal system is largely based on the English legal system. The New Zealand legal system comprises two main sources of law. • Statute law – meaning acts of the New Zealand Parliament (“Acts of Parliament”) and legislative instruments (these are subordinate or secondary legislation; eg, regulations made by the govern - ment under powers conferred by an Act of Parlia - ment). • Common law – this has been developed by judges over time through judicial decisions. The rule of precedent applies in New Zealand, so decisions of higher courts are binding on lower courts, and judges will have regard to other cases that are legally similar. New Zealand has a range of courts that deal with civil and criminal matters. The court system has four tiers (in order of ascending senior - ity): the District Court, the High Court, the Court of Appeal and the Supreme Court. There are also other specialist courts and tribunals for specific areas of law. Parliament has supreme authority to override or fur - ther develop case law by statute. New Zealand has no single constitutional document. Many of New Zealand’s constitutional principles exist in common law, and some have been codified in stat - ute (such as the Constitution Act 1986 and the New Zealand Bill of Rights Act 1990).
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