Governance - Parry Field Lawyers

Clean Water Package Controversy

The government recently announced its Clean Water Package. The release has caused considerable controversy, largely around the proposed target of 90% of rivers and lakes being ‘swimmable’ by 2040 and, in particular, the E.coli guidelines for swimmable rivers being 540 E.coli per 100mls.

The Green Party and Labour Party were vociferous in their criticism of the government’s announcement largely because the amount of E.coli that can be present in swimmable water has doubled.As well, Forest and Bird advised the Minister for the Environment, Dr Nick Smith and the Minister for Primary Industries, Nathan Guy that it was withdrawing from the Land and Water Forum. Forest and Bird is a very influential pressure group in this arena; it took legal action in relation to the proposed Ruataniwha Dam and that matter is still being litigated.

The Land and Water Forum brings together groups of stakeholders such as industry groups, electricity generators, environmental and recreational bodies, iwi, scientists and other organisations with a stake in fresh water and land management. The purpose of the forum is to try to develop a common direction for fresh water management and provide advice to the government on this issue. There are 67 non-government participants, and 13 central and local government partners that include local authorities and various government departments.
The issue of fresh water standards for waterways is highly political and is likely to remain this way in the foreseeable future.

Where to from here for farmers?

Where does this government announcement leave farmers? Is their position any different from that set out in our article in the Autumn 2016 issue of Rural eSpeaking which covered the Resource Legislation Amendment Bill 2015 which, when (or if), enacted will give the government power to prescribe regulations to fence waterways?
In answer to the questions posed above, the release of the Clean Water Package doesn’t change the position of farmers at all. Sheep and cattle have been identified as major contributors to the level of E.coli in rivers and streams, and any attempt to control levels of that bacteria will involve keeping animals out of those waterways as far as possible.

The government’s tinkering with the definition of ‘swimmable’ will have little effect on the need to keep animals as far as possible away from our streams and rivers.
As much as anything, the current furore over the government’s package shows that the issue remains highly political – particularly with 2017 being an election year. There are well-funded and high-powered pressure groups involved; farmers cannot expect any relaxation in the fencing proposals that are currently on the table.
Interestingly enough shortly after the Clean Water Package was announced, the Environmental Defence Society released a report entitled ‘Last Line of Defence: Compliance, monitoring and enforcement of New Zealand’s environmental law.’

Local authority compliance

One of the areas that the report examined was resourcing, as well as the technical capacity, for local authorities’ compliance functions. While the report noted that regional authorities have been demonstrating increasing technical capacity for their compliance function, there is still a concern that there is political influence on decision-making, including the allocation of resources.
Clearly, monitoring compliance with the fencing of rivers and streams is going to impose a considerable burden upon our regional and unitary authorities.
In the meantime, however, we will keep you informed on the debate around the Clean Water Package.

Copyright of NZ Law Limited, 2017

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Please contact Paul Owens at Parry Field Lawyers (348-8480) paulowens@parryfield.com

In an increasingly online world we are sharing and disclosing more and more online and that information is being held digitally. There are frequent examples in the news of leaks and data breaches. This article looks at this issue in detail and examines what the legal requirements are in this area. Understanding what to do when there are data breaches is vital in these times when it is an increasingly common event.

So you’ve had a Data Breach. What are you legally required to do?

On 1 December 2020, the new Privacy Act came into force. One of the significant changes is the requirement to report serious breaches to the Privacy Commissioner and the affected individuals.

What is a privacy breach?

A privacy breach is defined as:

unauthorised or accidental access to, or disclosure, alteration, loss or destruction of, the personal information; or
an action that prevents the agency from accessing the information on either a temporary or permanent basis.

When do I have to report a privacy breach?

A privacy breach becomes notifiable when it is reasonable to believe that the breach has caused serious harm to those affected, or is likely to do so.

How do I assess whether a privacy breach will cause serious harm?

When assessing the seriousness of a privacy breach, you will need to consider the following:

any action you have taken to reduce the risk of harm following the breach;
• whether the personal information is sensitive in nature (e.g. financial/health information);
• the nature of the harm that may be caused to affected individuals;
• who obtained or may obtain personal information as a result of the breach (if known);
• whether the personal information is protected by a security measure (e.g. was the information encrypted?); and
• any other relevant matters.

How do I report the privacy breach?

As soon as practicable after becoming aware of the privacy breach, you must notify the Privacy Commissioner. You can do so at the Privacy Commissioner’s ‘NotifyUs’ page here.

You must also notify the affected individuals as soon as practicable after becoming aware, unless an exception applies.

What are the Exceptions?

You do not need to disclose the breach if disclosure would prejudice the security or defence of New Zealand, prejudice maintenance of the law, endanger the safety of a person or reveal a trade secret.

You may delay notification if you believe disclosure would risk the security of the personal information and those risks outweigh the benefits of informing the affected individuals. As soon as the grounds for delay no longer pose a risk, you must inform the affected individuals of the breach.

Even if you rely on an exception, you must always notify the Privacy Commissioners of the breach as soon as practicable.

What happens if I don’t comply?

Failure to notify the Privacy Commissioner of a notifiable privacy breach may result in a fine of up to $10,000 or the issue of a public compliance notice.

How can I prepare?

You should use this opportunity to make sure your privacy policy will comply with the Act. You should also consider the following:

Make sure you have internal procedures in place to deal with how you become aware of a privacy breach;
Assess the personal information you hold, the reason you collect it, where it is stored and who has access to it;
Make sure your staff are aware of the new requirements.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. If you think your privacy policy is insufficient (or non-existent!), we would strongly encourage you to get in touch with us. Contact Steven Moe at stevenMoe@parryfield.com

New Zealand has a similar takeovers regime to that in other Commonwealth jurisdictions like Australia and England. There are specific rules which govern when a takeover offer will need to be made and the process around doing so. This article sets out the key thresholds involved and points to be aware of if an acquisition in New Zealand is being considered.

Where are the rules set out?

Takeovers are governed by the Takeovers Code which became law 15 years ago. The purpose is to make sure that the acquirer of shares in a company complies with certain rules when certain thresholds are met. This means that shareholders are informed where there is a potential change of control of the company they own shares in.

Which companies do the rules apply to?

The rules only apply to certain “Code Companies” which are only New Zealand registered companies that:

have (or recently have had) listed shares that trade on the NZX; or
have 50 or more shareholders who hold voting rights as well as 50 or more share parcels.

What are the key thresholds?

The fundamental threshold is 20% because acquisitions of shares which will take a shareholding above 20% are caught by the Takeovers Code. In measuring this the percentage held by associates is also examined. Such acquisitions must be done in compliance with the rules.

A takeover offer can either be a partial or full takeover offer. Full takeover offers mean the offeror has to receive a minimum level of acceptance of the offer. So if the offeror does not reach more than 50% then the entire takeover fails.

This is in contrast to a partial takeover offer where the offeror makes an offer for only some of the shares. Whether it is successful will depend on the level that is sought – if for more than 50% then the acceptances need to be above that level. If for less than 50% then shareholders vote for or against the offer – so the offer needs to get to the percentage specified and also be approved by a majority of the shareholders. As this indicates, these rules are more complex than a full takeover.

The following are also important percentages to be aware of:

50% shareholding: As mentioned above, this is important in the context of a takeover to determine what rules apply;
5% creep: is permitted each year over a 12 month period for Shareholders who already own more than 50%; and
90% threshold: compulsory acquisition of shares is permitted above this level because they have become a dominant owner.

Conclusion

This short summary of some of the key points regarding takeovers in New Zealand is brief and the specific circumstances of any situation will need to be examined. If you have a target in mind then it would pay to discuss the context of that particular proposal with your advisers to obtain input on the best approach to adopt as one size will not fit every situation.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance, please contact Kris Morrison at Parry Field Lawyers (348-8480) krismorrison@parryfield.com

The Consumer Law Reform Bill (“the Bill”) contains significant changes to New Zealand consumer laws, and will affect a wide range of businesses. At this stage it looks like it will come into force in or about October 2013, although some sections will have a transition period of 6 months or more before they become effective.

Regulation of the relationship between businesses and consumers in New Zealand is currently largely dictated by the Fair Trading Act 1986 (“the FTA”) and the Consumer Guarantees Act 1993 (“the CGA”). The Bill will strengthen and update both of those Acts, among others, and will align them more closely with Australian consumer law.

The changes will affect the relationship between businesses and consumers and the relationship between businesses and businesses. This article discusses some of the more substantial amendments and what you should do to prepare for these changes.

Unfair Contractual Terms

A significant number of proceedings brought by consumers (or the Commerce Commission) against businesses, have been for breach of section 9 of the Fair Trading Act which stipulates a person shall not, in trade, engage in conduct that is misleading or deceptive, or likely to mislead or deceive.

The Consumer Law Reform Bill introduces a further restriction; that a person, in trade, must not include an unfair contract term in a standard form consumer contract, or rely on or enforce such a term.

A contract is presumed to be standard form until proved otherwise. Factors which will point to a standard form contract include:

whether one party has all the bargaining power;
whether the contract was prepared before any discussion relating to the transaction occurred; and
a lack of opportunity to negotiate.

The bill gives examples of unfair contract terms, which include:

A term that permits one party (but not the other party) to avoid or limit the
performance of the contract, or to terminate, vary or renew the contract; and
A term that limits one party’s right to sue another party, or limits one party’s
vicarious liability for its agent.

To limit the risk of uncertainty to consumer contracts the unfair terms provisions are only enforceable by the Commerce Commission. The Commerce Commission can apply to a Court for a declaration that a term is unfair, and if successful, that term will not be able to be enforced or relied upon.

The unfair contract provisions will come into force 15 months after the Bill receives Royal assent to allow businesses time to prepare.

How can you Prepare for the Changes

Examine any standard form contracts that your business relies upon, and determine whether any terms may be regarded as “unfair”.

The Commerce Commission has stated that they expect all businesses to comply with the new provisions by the date the new law comes into force, so make changes to affected contracts sooner rather than later.

Unsubstantiated Representation

The Bill will make it an offence under the FTA for a person, in trade, to make an unsubstantiated representation.

An unsubstantiated misrepresentation is a claim made about a good or service without any reasonable basis,irrespective of whether it is true or not.

Currently the onus is on the Commerce Commission to prove that a claim made by a trader is false. Under the Bill the trader will have to make sure that they have good grounds for making any claims about their products.

The law does not apply to representations that a reasonable person would not expect to be substantiated, such as “puffery” (i.e. ‘Red Bull gives you wings. In determining whether a representation is substantiated the Court will consider industry standards.

The degree of evidence required is likely to be a factual issue. Considerations such as how specific the representation is, the type of product (is it potentially dangerous), and the accessibility to evidence (can the consumer easily test the representation themselves) are relevant in similar Australian law.

How can you Prepare for the Changes

If you are in the business of supplying services or goods you should first identify representations that you are making that consumers are likely to rely upon.
Having identified these, begin the process of ensuring that representations you are making are supported by evidence. Your legal advisor will be able to assist in determining what evidence is likely to be necessary.

Contracting out of the Fair Trading Act and Consumer Guarantees Act

Under the Bill parties will not be able to contract out of the FTA or the CGA, except in some situations when both parties are in trade. In those circumstances it must be fair and reasonable that the parties are bound by the contracting out provision.

In determining what is “fair and reasonable” the Court will take into account various circumstances including:

The value of the goods;
Whether the other party was required to accept the terms and conditions; and
The respective bargaining power of the parties.

How can you Prepare for the Changes

Review your business to business agreements to determine whether contracting out clauses should be added, or whether existing clauses are fair and reasonable.

Extending the Consumer Guarantees Act – Auctions and Guarantee of Delivery

Under the Bill consumers will be able to rely upon the CGA when purchasing of goods by way of auction, including online, such as through Trade Me. Further, those supplying goods, whether by auction or otherwise, will be liable for loss or damage to goods in transit. Delivery to the consumer will also need to occur within a reasonable time (if no specific time is agreed).

How can you Prepare for the Changes

Make sure you are familiar with your obligations under the CGA.
Make sure your representations as to time of delivery are realistic.

Should you need any assistance with this, or with any other commercial matter, please contact Kris Morrison or Tim Rankin at Parry Field Lawyers (348-8480).

For many businesses, one of their most significant assets may be goodwill. Registering the trade marks you use can add value to your business by helping deter other businesses from trying to imitate your brand or benefit from its success. Parry Field Lawyers provide legal advice on a range of commercial matters including protecting your intellectual property.

Read more

Clean Water Package Controversy

Where to from here for farmers?

Local authority compliance

Where are the rules set out?

Which companies do the rules apply to?

What are the key thresholds?

Conclusion

Christchurch CBD

Christchurch

Rolleston

Hokitika