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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Italy: New Legislation on International Judicial Cooperation in Effect

(Dec. 6, 2017) On October 31, 2017, comprehensive new legislation on extradition and other forms of international judicial cooperation entered into effect in Italy. (Legislative Decree No. 149 of October 3, 2017, Provisions Amending Book XI of the Code of Criminal Procedure on Jurisdictional Relations with Foreign Authorities (L.D. No. 149), GAZZETTA UFFICIALE (Oct. 16, 2017), NORMATTIVA (in Italian).) L.D. No. 149 amends not only the Italian Code of Criminal Procedure (C.P.C.) provisions on extradition, but also those concerning requests for international judicial assistance, the legal effect of foreign criminal decisions, the execution of Italian criminal decisions overseas, and other matters related to cooperation with foreign criminal authorities. (L.D. No. 149, art. 1.1.)

The Decree provides that Italy’s judicial assistance relations with Member States of the European Union are governed by EU law (including EU implementing legislation), general international conventions, and applicable general international law (id. art. 2.1), while such relations with non-EU members are governed by international conventions in force between Italy and the respective state and by general international law (id. art. 2.2).

Mutual Recognition of Judicial Decisions with Other EU Members

As already established in current legislation, judicial decisions and decrees issued by competent authorities in other EU Member States may be recognized in Italy. (Id. art. 2.4, adding art. 696-bis (2) to the C.P.C.) However, the new Decree streamlines procedural issues providing that the competent Italian judicial authorities that receive requests for judicial cooperation communicate directly with their EU Member State counterparts and send them information related to the recognition and enforcement of the judicial decision or decree on the given criminal matter. (Id. art. 2.4, adding art. 696-quarter (1)-(2) to the C.P.C.)

Under L.D. No. 149, Italian judicial authorities must recognize and enforce those decisions and decrees, provided that there are no reasonable grounds indicating that the criminal defendant or the person convicted will be subject to acts constituting a serious violation of the fundamental principles of the Italian legal system or EU law. (Id. art. 2.4, adding art. 696-ter(1) to the C.P.C.) Recognition and enforcement must proceed without delay and may not entail a review of the merits of another EU judicial decision or decree, unless the applicable legislation provides for an exception. (Id. art. 2.4, adding arts. 696-quinquies(1) & 696-octies(1) to the C.P.C.) The Italian Minister of Justice must guarantee compliance with the conditions established in each case by the requesting EU judicial authorities. (Id. art. 2.4, adding art. 696-sexies (1) to the C.P.C.)

The new Decree states that decisions on the recognition and enforcement of a decree issued by a judicial authority of another EU member state may be appealled according to the means established by the Italian C.P.C. (Id. art. 2.4, adding art. 696-novies(1) to the C.P.C.) Judicial decisions and decrees that are deemed to adversely affect the personal freedoms of the concerned persons may be challenged through a writ of cassation for violation of Italian law. (Id. art. 2.4, adding art. 696-novies(2) to the C.P.C.) No appeal may be lodged on the basis of the merits of a decision, unless a specific exception is established in the applicable legislation. (Id. art. 2.4, adding art. 696-novies (3) to the C.P.C.) Third parties that are interested in the enforcement of the respective decision or decree may intervene in good faith in the recognition procedures. (Id. art. 2.4, adding art. 696-decies(1)-(2) to the C.P.C.)

Admissibility of Extradition Requests  

L.D. No. 149 states that the Ministry of Justice may refuse a request for judicial cooperation when the requesting state does not provide adequate guarantees of reciprocity, or when the request may compromise the sovereignty, security, or essential interests of the Italian state. (Id. arts. 2.4. & 4(1)(a)(2).) In accordance with an applicable international convention, the Ministry may reject the extradition of a citizen, taking into account the gravity of the facts, the relevance of the interests involved, and the personal condition of the person who is the subject of the request for extradition. (Id.)

Additionally, Italian judicial authorities may reject a request for extradition submitted by another country upon determining that the person concerned is likely to be subject to acts of persecution or discrimination for reasons of race, religion, sex, nationality, language, political opinion, or personal or social conditions; or to the death penalty or cruel, inhuman, or degrading punishment or treatment; or who in any way is likely to suffer a violation of fundamental human rights. (Id. art. 4(1)(a)(3)(f).) In particular, the legislation repeals language that previously allowed Italian judicial authorities to accept a request for extradition when a requesting state whose domestic legislation included the death penalty provided assurances that the death penalty would not be imposed. (Id. art. 4(1)(a)(3)(b)(1).)

Procedure for the Review of Extradition Requests Submitted by non-EU Countries

Within 30 days of receiving a request for extradition submitted by a country outside of the EU, the Minister of Justice must decide whether to approve or reject it, and if the Minister accepts it, the appropriate documentation must be sent to the general prosecutor of the respective territorial appellate court for the execution of the extradition. (Id. art. 4(1)(a)(3)(d)(1).) The general prosecutor then orders the possible extraditee to appear for identification and interrogation, to determine whether he/she will consent to be extradited. (Id. art. 4(1)(a)(3)(d)(2).) The person is to be informed that he/she can appoint an attorney or the court will appoint a public defender. (Id.) When the extradition of a person from one non-EU state to another requires transit through Italian territory, the Minister of Justice must issue the respective authorization upon application from the requesting state, provided that the transit does not compromise the sovereignty, security, or essential interests of the Italian state. (Id. art. 4(1)(a)(3)(l).)

The Minister of Justice must decide on a request for judicial cooperation submitted by a foreign authority within 30 days of receiving the request. (Id. art. 6(1)(a).) Requests for judicial assistance that entail the gathering of evidence or the sequestration of assets for purposes of confiscation must be transmitted to the prosecutor of the district where the requested measure will be executed.  (Id. art. 6(7)(b)(1).) Special provisions are included on the extradition of persons connected to mafia activities or terrorism. (Id. art. 6(9).)

Execution of Foreign Criminal Decisions in Italy and of Italian Criminal Decisions Abroad

Appellate courts with jurisdiction in the territory where the foreign criminal extradition decision is to be implemented must decide on the request for extradition within 90 days, hearing the opinion of the respective prosecutor, the interested person, and his defense counsel. (Id. art. 8(1)(d).) The Minister of Justice must ensure that requests for the execution of Italian criminal decisions sent overseas comply with all the conditions established by the requesting state for acceptance of such requests. (Id. art. 9(1)(b).)

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Germany: Regional Court of Frankfurt Establishes English-Speaking Chamber for Commercial Matters

(Dec. 6, 2017) On November 2, 2017, the German Regional Court of Frankfurt am Main (Landgericht Frankfurt am Main) reported that they will establish an English-speaking Chamber for Commercial Matters in January 2018. If a party requests that the dispute be litigated in English, the dispute will be automatically assigned to the new Chamber. If both parties agree, the language used during oral arguments will be English. (Press Release, Gerichtsstandort Frankfurt wird gestärkt: Englischsprachige Kammer für Handelssachen ab Januar 2018 [Strengthening Frankfurt as a Venue: English-Speaking Chamber for Commercial Matters Starting in January 2018] (Nov. 2, 2017), Landgericht Frankfurt website.)

The President of the Regional Court of Frankfurt explained that the court sees a “chance to establish Frankfurt as an international forum,” especially after Brexit. (Id.)

Background

The German Courts Constitution Act generally provides that the language of the courts is German. However, if all parties understand a foreign language, the oral proceedings may be conducted in that foreign language without the use of an interpreter. (Gerichtsverfassungsgesetz [GVG] [Courts Constitution Act], May 9, 1975, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1077, as amended, §§184, 185; English translation (updated through July 2, 2013) GERMAN LAWS ONLINE.) Chambers for commercial matters can be established by the German states at regional courts. (Id. § 95.) These chambers deal with disputes between merchants and are composed of one professional judge and two lay judges who are merchants. (Id.)

In 2010, several regional courts in the German state of North Rhine-Westphalia embarked on a model project and established International Chambers for Commercial Matters in which the parties could choose English as the language of the oral proceedings. (Martin W. Huff, Modellprojekt in NRW. LG Köln goes international [Model Project in NRW. Regional Court of Cologne Goes International, LEGAL TRIBUNE ONLINE (Nov. 29, 2011).)

In 2014, a bill was submitted to the German parliament that would have amended the Courts Constitution Act to allow the establishment of International Chambers for Commercial Matters and to change the language of the court in such chambers to English. In addition to conducting the oral proceedings in English, the bill would have permitted the use of English for the briefs, court records, and decisions of the court. The decision of the case would have been translated into German as well.  The bill required that the case have an international element, for example, an English-language contract, and that the parties agree that the language of the proceedings would be English. (Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 18/1827, Bundestag website.) However, due to the “principle of discontinuity,” the bill became moot at the end of the legislative period in 2017 and will have to be resubmitted in the new legislative period. (Rules of Procedure of the German Parliament, June 25, 1980, BGBl. I at 1237, as amended, § 125, GERMAN LAWS ONLINE, English translation (updated through May 2014) German Parliament website.)

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Cambodia: Supreme Court Dissolves Main Opposition Party

(Dec. 6, 2017) On November 16, 2017, Cambodia’s Supreme Court dissolved the country’s main opposition party, the Cambodia National Rescue Party (CNRP), and placed a five-year ban to effectively preclude 118 CNRP members from participation in any political activity.  (Prak Chan Thul & Amy Sawitta Lefevre, Cambodia’s Opposition Braces for Supreme Court Decision, REUTERS (Nov. 15, 2017).)  The issuance of the ruling was preceded by the arrest of Kem Sokha, the leader of the CNRP, on charges of his party’s “plotting to overthrow the current government with the help of the US government.”  (Id.)

Prime Minister Hun Sen and his ruling Cambodian People’s Party (CPP) reportedly consider Sokha as posing a major threat to Hun Sen’s hold on to power in the country’s upcoming elections.  The CNRP contends that political motivations are behind the accusations against it and Sokha’s arrest.  (Ram Eachambadi, Cambodia Supreme Court Dissolves Nation’s Primary Opposition Party, PAPER CHASE (Nov. 16, 2017.)  The Court is reportedly headed by a judge who is a member of the CPP.  (Id.)

Reactions

United States government officials have not commented on the ruling, but on November 16, the U.S. Senate Foreign Relations Committee agreed by unanimous consent to Senate Resolution 279, “reaffirming the commitment of the United States to promote democracy, human rights, and the rule of law in Cambodia.”  (Reaffirming the Commitment of the United States to Promote Democracy, Human Rights, and the Rule of Law in Cambodia (S. Res. 279), 115th Congress, 1st Session, 168:188 CONGRESSIONAL RECORD (Senate – Nov. 16, 2017); Eachambadi, supra.)  The Resolution states, among other comments, that

  • … the next general election in Cambodia is scheduled for July 29, 2018, and the CPP continues to use intimidation and misuse of legal mechanisms to weaken political opposition and media organizations in order to retain its power;
  •  … the Cambodian parliament in 2017 passed two repressive amendments to Cambodia’s Law on Political Parties that allow authorities to dissolve political parties and ban party leaders from political activity, and which contain numerous restrictions tailored to create obstacles for opposition parties in an attempt to maintain the CPP’s hold on power; [and]
  •  …Kem Sokha, the President of CNRP, was arrested on September 3, 2017, and charged with treason and conspiring with the United States Government to overthrow the Government of Cambodia, and if convicted faces up to 30 years in prison, which sets the stage for the CNRP to be dissolved; … .  (S. Res. 279, supra.)

The Resolution also criticizes “the passage of laws allowing the government to revoke the charters of non-governmental organizations on a political basis, …, the imposition of severe media restrictions and the 2016 assassination of a frequent Hun Sen critic and activist Kem Ley,” while urging the Cambodian government to end harassment and intimidation of the opposition and to foster an environment where democracy can flourish.  (Eachambadi, supra.)

Brad Adams, Asia director of the advocacy group Human Rights Watch, referred to Hun Sen’s actions to remove the CNRP and its members as “a naked power grab, canceling the votes of millions of Cambodians in previous elections and rendering next year’s national elections meaningless.”  He added, “democracy died in Cambodia today [November 16, the day of the ruling] and it’s hard to see it reviving” as long as the Hun Sen regime holds sway.  (Cambodia: Supreme Court Dissolves Democracy, HUMAN RIGHTS WATCH (Nov. 17, 2017).)

Background: July Amendment of Law on Political Parties

On July 10 of this year, the Cambodian Parliament adopted an amendment, proposed by Hun Sen, to the Law on Political Parties, to ban political parties “from associating with or using the voice, image, or written documents of anyone convicted of a criminal offense,” with parties found to be in violation of this measure to face being “banned from political activities for up to five years and prohibited from competing in elections, or even dissolved.”  (Savi Khorn, Cambodia Signs Controversial Amendment into Law, RADIO FREE ASIA (July 28, 2017).)  The Constitutional Council subsequently approved the amendment, and the Senate President, Say Chhum, who was acting head of state in the absence of the King of Cambodia, signed the legislation into effect on July 28 in a state of “urgency.”  (Id.; Law on Political Parties (promulgated Nov. 18, 1997), REFWORLD.)

The Constitutional Council is the highest-level government body established to guarantee that the Constitution is respected, to interpret the Constitution and the laws adopted by the National Assembly (the lower house of the Parliament) and reviewed by the Senate, and to examine and deliver decisions in litigation related to election of Members of the National Assembly and of Senators.  (What Is the Constitutional Council?, Constitutional Council of Cambodia website (last visited Nov. 30, 2017).)  The Council, which is composed of a president and eight members, has been functioning since June 15, 1998.  (Id.)

As a result of the amendments to the law, CNRP ties with its former president Sam Rainsy have in effect been severed, with Rainsy prohibited from campaigning from abroad for his party.  (Khorn, supra; Prak Chan Thul, Cambodia Changes Election Law Ahead of 2018 Vote, REUTERS (July 10, 2017).)  Rainsy has been living in France since November 2015 in self-imposed exile, to avoid being imprisoned after having been convicted of crimes “widely seen as politically motivated and delivered by courts beholden to Hun Sen’s government.”  (Khorn, supra.)

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Iran: Cabinet Abandons Directive on Scrapping Old Cars to Reduce Air Pollution

(Dec. 5, 2017) Pressure from Iran’s automakers and the country’s Ministry of Industry, Mines and Trade has led to the cancellation by the Council of Ministers (Cabinet) of a recently adopted directive aimed at combating the high levels of air pollution in Iran’s big cities, 80% of which comes from automotive sources. (Ameer Hossein Askarian, Traffic Police Criticize Government Council’s Cancellation of Decree on Scrapping Cars, MOQAVEMATI NEWS (Oct. 24, 2017) (in Persian); Suspending the Licensing of Gas-Guzzling Cars; Perhaps Some Other Time, ISNA (Oct. 11, 2017) (in Persian).) The directive, which was announced on August 15 and entered into force on September 17, 2017, required local automotive companies to scrap one old, gas-guzzling car for every car they produced whose fuel consumption was over 8.5 liters per 100 kilometers or pay a fine of 25 million rials (about US$625). (Suspending the Licensing of Gas-Guzzling Cars, supra; Laws to Curb Pollution Gone with the Wind, FINANCIAL TRIBUNE (Oct. 26, 2017).)

With the cancellation of the directive, gas-guzzling and polluting cars will continue to be produced in the country without any special restrictions, and the issuing of special license plates for such cars, which had ceased with the publication of the directive, resumed. (Reversal of Auto Emission Rules in the Country, ASR-E KHODRO (Oct. 23, 2017) (in Persian); Laws to Curb Pollution Gone with the Wind, supra.)

Environmental and Financial Effects of the Directive’s Cancellation

While the cancellation of the directive was welcomed by the auto industry, it was sharply denounced by environmentalists and other experts. (Laws to Curb Pollution Gone with the Wind, supra.)  Expressing his dismay, Colonel Sa‘eed Rouhi, the technical and engineering deputy of Iran’s traffic police, stated that “cancelling the decree on scrapping old cars alongside of producing cars with high fuel consumption is a mistake” because “removing old cars from the transportation system is the principal approach for reducing air pollution in the big cities.”  (Traffic Police Criticize Government Council’s Cancellation of Decree on Scrapping Cars, supra; Laws to Curb Pollution Gone with the Wind, supra.)  Rouhi maintained that the directive would have been effective had it been enforced, citing studies indicating that the rate of fuel consumption and, consequently, air pollution could have been reduced by 10%.  (Traffic Police Criticize Government Council’s Cancellation of Decree on Scrapping Cars, supra.)

In addition, the extremely short time between the announcement of the directive and its implementation (about a month) reportedly led to financial losses for citizens who had bought domestic cars with high fuel consumption before the directive was passed but suddenly had to sell them on learning that special licenses for their cars would no longer be issued – only to have the directive cancelled a few weeks after it went into effect. (Suspending the Licensing of Gas-Guzzling Cars, supra.)

Future Government Measures Planned

Iran’s air pollution problem does not stem entirely from the prevalence of old gas guzzlers on its city streets. The engines used in most new cars produced by the two main semi-state-owned companies, Iran Khodro and SAIPA, are “notorious for high emissions, poor mileage, and flaunting safety rules, especially the low-priced sedans,” and would be below standard in countries with strict environmental regulations.  (No Cherry-Picking, All Low-Quality Cars Have to Go, FINANCIAL TRIBUNE (Oct. 22, 2017).) Accordingly, Nayereh Pirouzbakht, head of the Iran National Standards Organization (INSO), has stated that “production lines of all low-quality cars will be halted by 2019” and production permits for any vehicle failing to meet the INSO benchmarks will be revoked.  (Id.)

Environment activists, economic experts, and NGOs, however, have registered “complaints and protestations” about what they claim is the government’s reported failure to implement tougher regulations announced in recent years to improve domestic car quality and get high emission vehicles off the roads and its “inability or unwillingness to use the full force of the law” against Iran Khodro and SAIPA for refusing “to [comply with] minimum environmental standards and curb production of low-quality vehicles.” (Id.)

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New Zealand: Paid Parental Leave to Be Extended to 26 Weeks by 2020

(Dec. 5, 2017) On November 30, 2017, the New Zealand Parliament voted to pass legislation that will see the current paid parental leave entitlement of 18 weeks extended in two stages: to 22 weeks from July 1, 2018, and then to 26 weeks from July 1, 2020.  (Parental Leave and Employment Protection Amendment Bill, PARLIAMENT OF NEW ZEALAND (last visited Nov. 30, 2017); Parental Leave and Employment Protection Amendment Bill (text of the bill), NEW ZEALAND LEGISLATION; Press Release, Iain Lees-Galloway, Bill to Extend Paid Parental Leave to 26 Weeks Passes, BEEHIVE.GOVT.NZ (Nov. 30, 2017).)

Background and Rationale

The Parental Leave and Employment Protection Amendment Bill 2017 was among the first pieces of legislation proposed by the new Labour Party-led government, which was sworn in on October 26, 2017.  The Bill was introduced on November 8.  (Press Release, Iain Lees-Galloway, Government Moves to Extend Paid Parental Leave to 26 Weeks with Urgency, BEEHIVE.GOVT.NZ (Nov. 8, 2017).)  Previously, a bill to extend paid parental leave to 26 weeks, which was introduced by a Labour Party member of Parliament in 2015, was discharged by a financial veto of the National Party-led government at its third reading (the final parliamentary stage for a bill) in June 2016.  (Parental Leave and Employment Protection (6 Months’ Paid Leave) Amendment Bill, PARLIAMENT OF NEW ZEALAND (last visited Dec. 4, 2017).)  At the time, the then-Finance Minister Bill English stated, “Treasury estimates the cost of this legislation amounts to $278 million over the next four years, a significant extra – unbudgeted – cost.  That’s on top of the $251 million a year (net of tax) taxpayers are expected to spend by 2020 under the existing paid parental leave framework.”  (Jo Moir, Government Has Used the Financial Veto to Stop an Extension to Paid Parental Leave, STUFF.CO.NZ (June 16, 2016).)

Extending paid parental leave subsequently became part of the policy platforms of the two major political parties during the September 2017 election campaign, with the National Party stating that it would extend the leave entitlement to 22 weeks, while the Labour Party committed to 26 weeks.  (Press Release, Paula Bennett, Michael Woodhouse & Jonathan Coleman, National Supports Young Families: Our Parents and Newborn Package Includes Extending Paid Parental Leave to 22 Weeks, Supporting Families to Grow and Stay Healthy, NATIONAL.ORG.NZ (Aug. 29, 2017); Press Release, Sue Maroney, Labour Committed to 26 Weeks Paid Parental Leave, LABOUR.ORG.NZ (Aug. 29, 2017).)

Upon introducing the amendment bill, Minister of Workplace Relations and Safety Iain Lees-Galloway stated:

As well as the direct financial benefits to households and reducing stress on parents, extending paid parental leave has a range of positive impacts on child development and fostering parent-infant attachment.

It also aligns with the World Health Organisation recommendation of exclusive breastfeeding up to six-months of age, all of which improves short-term and long-term child and society outcomes. (Government Moves to Extend Paid Parental Leave to 26 Weeks with Urgency, supra.)

After the bill passed, the Minister further stated:

Extending the duration of payments is vital for supporting working families with newborns and young children and for New Zealand to catch up with the best international practice.

New Zealand’s current paid parental leave entitlement of 18 weeks is one of the lowest in the OECD [Organisation for Economic Co-operation and Development], with the average number of weeks of paid leave to mothers among OECD countries being 48 weeks. (Bill to Extend Paid Parental Leave to 26 Weeks Passes, supra.)

Previously, the duration of paid parental leave (originally called “maternity leave”) was extended to 18 weeks from 16 weeks on April 1, 2016, and prior to that, from 14 weeks on April 1, 2015.  (Parental Leave and Employment Protection Amendment Act 2014NEW ZEALAND LEGISLATION.)  Amendments to the legislation were also made in 2016 to extend parental leave payments to “non-standard” workers, such as those in casual or seasonal employment and employees with more than one employer, as well as to those who have recently changed jobs.  (Parental Leave and Employment Protection Amendment Act 2016, NEW ZEALAND LEGISLATION; Parental Leave Law Changes 2016, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)

Parental Leave System in New Zealand

Different types of parental leave are available under the Parental Leave and Employment Protection Act 1987 (PLEP Act) and Parental Leave and Employment Protection Regulations 2016 (NEW ZEALAND LEGISLATON).  The legislation provides for paid “primary carer leave,” unpaid “partner leave,” and extended unpaid leave that is available to both primary carers and their partners.  (Types of Parental Leave, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)  

Paid parental leave in New Zealand is funded from general taxation revenue.  (PLEP Act s 71Q.)  The payments are administered by the Inland Revenue Department (IRD).  (Types of Parental Leavesupra.)  A primary carer may receive weekly parental leave payments equal to the greater of an applicant’s ordinary weekly pay, or his or her average weekly income, for the duration of the paid leave entitlement period.  However, payments are capped at a maximum weekly amount of NZ$538.55 before tax (about US$368.55).  (PLEP Act ss 71D & 71M; Paid Parental Leave, IRD (last updated June 29, 2017); Amount of Parental Leave Payment, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).) This amount is adjusted each year to reflect increases in the average wage.  (PLEP Act s 71N.)

The primary carer of a child is entitled to one continuous period of leave (currently 18 weeks).  Up to six weeks of the leave entitlement may be taken before the expected date of birth or adoption. (Id. ss 9 & 11.)  The person must have worked for the same employer for an average of at least ten hours a week during the six months before the baby’s due date or the date on which the carer becomes responsible on a permanent basis for the care of a child aged under six years.  (Id. ss 2BA & 9.)  If a person has more than one job, each employment is treated separately.  (Id. s 2A; see generally Parental Leave Eligibility – Who Can Take It, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)

A primary carer is eligible for parental leave payments from the government if he or she has been employed for at least an average of ten hours a week for any 26 of the 52 weeks immediately preceding the expected delivery date or adoption.  (PLEP Act s 2BA(4).)  Self-employed primary carers are entitled to the payments on the basis of similar work criteria.  (Id. ss 2BA(4) & 71CB.  See generally Who Can Get Parental Leave Payments, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017); Parental Leave and Payment Eligibility Table, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)

The primary carer’s spouse or partner who has worked for the same employer for an average of at least ten hours per week in the 12 months preceding the due date or adoption date is entitled to two weeks of unpaid partner leave (previously called “paternity leave”).  If the duration of employment is six months, the entitlement is for one week of unpaid leave.  (PLEP Act s 19.)  A person who is entitled to paid primary carer leave can transfer all or part of his or her entitlement to an eligible spouse or partner.  (Id. s 71E.)

If a primary carer has been employed for at least 12 months with the same employer, he or she can take up to 52 weeks of total leave, with the period after the end of the paid leave period being unpaid leave.  If the primary carer has been employed for six months before the birth or adoption, the total amount of the paid and unpaid leave entitlement is 26 weeks.  (Id. ss 23 & 26.)  This “extended leave” can be shared with the person’s spouse or partner, either consecutively or concurrently, provided that they also meet the employment criteria.  (Id. ss 28 & 29.)  Unless the employee is in a “key position,” there is a presumption that his or her job should be kept open if he or she takes extended leave.  In determining whether an employee’s position is a “key position” an employer can have regard to matters such as the size of the employer’s enterprise and the training period or skills required for the job.  (Id. s 41.)

Pregnant women are entitled to ten hours of special paid leave for reasons associated with pregnancy.  This leave does not affect the employee’s other leave entitlements.  (Id. s 15.)

The same entitlements apply with respect to each subsequent child, provided that the primary carer works for at least six months before commencing a new period of leave.  He or she can receive payments if six months have elapsed since the end of their previous paid leave period.  (Id. ss 6 & 71F.)

Cost of Extending Paid Leave Duration

In the 2015-2016 fiscal year, IRD made NZ$217 million (about US$148.5 million) in payments to 26,300 parents.  (IRD, Budget 2017 Four-Year Plan – Covering Vote Revenue 10 (Nov. 2016).)  According to figures provided by the Ministry of Business, Innovation and Employment (MBIE), the extension of parental leave payments in the 2017 amendment bill will have a total net fiscal cost of approximately NZ$325 million (about US$422.4 million) over four years.  (MBIE, Extending Paid Parental Leave to 26 Weeks – Questions and Answers (last visited Dec. 4, 2017).)  Funding for the costs associated with extending the duration of paid parental leave will be provided in Budget 2018.  (Parental Leave and Parental Responsibility Bill – Explanatory Note, NEW ZEALAND LEGISLATION.)

The two-step increase mandated by the 2017 bill allows the government to stay within the parameters of the Budget Responsibility Rules that the Labour Party and Green Party agreed to prior to the election.  (Bill to Extend Paid Parental Leave to 26 Weeks Passes, supra; Labour Party & Green Party, Budget Responsibility Rules, Green Party website (last visited Dec. 4, 2017).)

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