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New Zealand: Trans-Pacific Partnership Bill Passed

(Nov. 22, 2016) On November 15, 2016, the New Zealand Parliament passed the Trans-Pacific Partnership Agreement Amendment Bill (TPPA Amendment Bill).  (Trans-Pacific Partnership Agreement Amendment Bill, New Zealand Parliament website (last visited Nov. 16, 2016); text of the latest version (133-3) of the Bill on New Zealand Legislation website.)  The Bill amends various pieces of legislation in order to implement the Trans-Pacific Partnership Agreement (TPP), which was signed by 12 countries on February 4, 2016.  The agreement will come info force if at least six of the signatories, together accounting for at least 85% of the combined GDP of all the original signatories, ratify the agreement within two years from that date, unless all of the signatories ratify before that time.  (Kelly Buchanan, Malaysia: Steps Taken Towards Ratification of Trans-Pacific Partnership, GLOBAL LEGAL MONITOR (Sept. 29, 2016).)

Contents of the Bill

The Bill includes amendments to the following statutes:

  • The Copyright Act 1994, to extend the duration of copyright in literary, dramatic, musical, or artistic works from life plus 50 to life plus 70 years (TPPA Amendment Bill 133-3, cl 9), and

    to provide a new regime for protection of technological protection measures, to provide new rights for performers, to provide additional protection for rights management information, to extend the border protection measures to allow the New Zealand Customs Service to detain exports of suspected pirated copyright works where a notice has been accepted from rights holders and to give ex officio powers to Customs officers to temporarily detain suspected pirated copyright works without a notice from rights holders, and to extend the protection of encrypted programme-carrying satellite and cable signals, as required by the intellectual property chapter of the Agreement.  (TPPA Amendment Bill 133-1, Explanatory Note; TPPA Amendment Bill 133-3, pt 2.)

  • The Patents Act 2013, to provide for a patent term extension to be granted for pharmaceutical substances where there are unreasonable delays in granting a patent, or an “unreasonable curtailment of effective patent term as result of marketing approval process.”  (TPPA Amendment Bill 133-3, cl 75; see also Kelly Buchanan, New Zealand: Government Consulting on Proposed Patent Term Extension Regulations, GLOBAL LEGAL MONITOR (July 15, 2016).
  • The Trade Marks Act 2002,

    to provide authority to courts to award additional damages for trade mark infringement, to extend the border protection measures to allow the New Zealand Customs Service to detain exports of suspected trade mark infringing goods where a notice has been accepted from rights holders and to give ex officio powers to Customs officers to temporarily detain suspected trade mark infringing goods without a notice from rights holders, and to require the courts in trade mark infringement cases to order the destruction of counterfeit goods except in exceptional cases, as required by the intellectual property chapter of the Agreement.  (TPPA Amendment Bill 133-1, Explanatory Note, supra.)

  • The Customs and Excise Act 1996, to allow the New Zealand Customs Service to issue advance rulings on the valuation of imports to TPP importers, exporters, and producers.  (TPPA Amendment Bill 133-3, pt 3.)
  • The Tariff Act 1988, to enable regulations to be made that implement the preferential tariff rates agreed to in the TPP and to implement certain mechanisms and procedures in the TPP related to textiles and apparel.  (Id. pt 9.)
  • The Overseas Investment Act 2005, to enable regulations to be made “to implement higher investment screening thresholds for overseas investments in significant business assets in order to comply with New Zealand’s obligations under the investment chapter of the Agreement and other related existing international trade agreements.”  (TPPA Amendment Bill 133-1, Explanatory Note, supra; TPPA Amendment Bill 133-3, pt 7.)
  • The Dairy Industry Restructuring Act 2001, “to implement an export licence allocation system for the country-specific quota access received for dairy products in the Agreement for the United States market.” (TPPA Amendment Bill 133-1, Explanatory Note, supra; TPPA Amendment Bill 133-3, pt 4.)
  • The Legislation Act 2012, to ensure compliance with the transparency and anti-corruption requirements in the TPP.  The changes will “ensure that New Zealand can promptly publish on a single Internet site all central Government subordinate instruments, together with an explanation of their purpose and rationale.”  (TPPA Amendment Bill 133-1, Explanatory Note, supra; TPPA Amendment Bill 133-3, pt 6.)

As noted when the Bill was introduced, it “will make all domestic legislative changes required to comply with New Zealand’s obligations in TPP, with the exception for obligations related to plant variety rights, which New Zealand has a three year period following entry into force to implement.” (Press Release, Todd McClay, TPP Bill Introduced to Parliament (May 9, 2016), BEEHIVE.GOVT.NZ.)

A separate bill to amend the Agricultural Compounds and Veterinary Medicines Act 1997 is also progressing through Parliament; it contains amendments that will implement a TPP article that “provides for the protection of undisclosed test and other data required to gain marketing approval for an agricultural chemical product.” (TPPA Amendment Bill, Supplementary Order Paper No. 239, Nov. 3, 2016, Explanatory Note.)

The TPPA Amendment Bill will come into force on the date on which the TPP enters into force in New Zealand. (TPPA Amendment Bill 133-3, cl 2.)

Reactions to the Bill and the TPP

The TPPA Amendment Bill was passed with 61 votes to 57. Opposition parties in Parliament have criticized the government for continuing to advance the Bill, given the outcome of the election in the United States and the President-elect’s statements regarding the TPP.  (TPP Bill Signed by Parliament as US Signals Its End, RADIO NEW ZEALAND (RNZ) (Nov. 15, 2016); Benedict Collins, Trade Minister ‘Patron Saint of Lost Causes’ on TPP, RNZ (Nov. 11, 2016).)

There has also been public opposition to the TPP in New Zealand, with protests taking place in several major centers during the past two years. (Thousands March Against TPP Trade Agreement, STUFF.CO.NZ (Aug. 15, 2015); Cherie Howie, TPP Protesters Shut Down Central Auckland as Ministers Sign Controversial Deal, NEW ZEALAND HERALD (Feb. 4, 2016); Annabelle Tukia, TPP Protest Stops Traffic in Christchurch, NEWS HUB (Sept. 10, 2016).

The Minister of Foreign Affairs and Trade, Todd McClay, said that the passage of the Bill “will be a signal of the commitment that New Zealand has for the continued liberalisation of international trade.  At times when there is uncertainty in the rest of the world, New Zealand’s consistent and trusted voice of negotiating trade outcomes that are good for our economy needs to be heard.” (Press Release, Todd McClay, TPP Bill Passes Third Reading, BEEHIVE.GOVT.NZ (Nov. 15, 2016).) Furthermore, he said that “[w]hilst acknowledging that there remain obstacles to the agreement coming into force, we need to take time to allow the new US administration time to fully  consider its trade agenda. Until then, New Zealand will continue its own, well-proven path to openness and inclusiveness in the global trade arena.” (Id.; Hon. Todd McClay, TPP Bill: Third Reading Speech, BEEHIVE.GOVT.NZ (Nov. 10, 2016).)