Papers prepared for Chief Archivist sign-off Tltle: Public Office status assessment for Otakaro Limited Doc Type: Assessment Prepared by: Polly Martin Peer reviewer: Chris Adam Due date: April 2016 Objective: A888438 DMS: IA: 0 Manager sign-off Date: 4 April 2016 Signature' 9V Q9 Senior Manager sign-off Date: 9 W5 \e Signaturetww Comments Ot?karo Limited has been established 22d porated by the Crown to take over some of the functions of the Canterbury Earth ecovery Authority from April 2016. Canterbury Earthquake Recovery thority has requested advice about the transfer of records. Archives New Zealan ormed a public of?ce status assessment to determine whether Ot?karo Limited i ated party under the Public Records Act (please ?nd public office assessment for .. .1 ro Limited the Otakaro Limited Constitution, and Archives New Zealand's g?for determining Public Of?ce status attached). The endations are that you; note that Otakaro Limited is not assessed to be a regulated party 0 note that the assessment has been checked with Legal services 0 agree that Otakaro Limited is not a public office under the Public Records Act. ChlefArchl tsign ff Approved Yes Signature: an yn ittle Chlef Archivist, New Zeala'nd Date: H7 Comments Return to: Public Office status Organisation Otakaro Limited Recommendation Is not a public of?ce Rationale In order to decide whether Otakaro Limited is an agency or instrument of the executive government, factors relevant to the nature and degree 0 of control which the executive could exercise over Otakaro Limited i have been assessed and given a weighting in relation to Otakaro Limited's particular current circumstances. The recommendation was approved by: Name Position Date A Marilyn Little Chief Archivist (7 I . . 1 General Criteria None apply. 1 Crown control test assessment Otakaro Limited is to deliver Anchor Projects in ristchurch precincts in a manner that is not inconsistent with any Recovery Plan or ration Plan and to acquire, manage and divest the Crown's assets associated Mia.l chor Projects (including Crown-owned Land) over a timeframe agreed from time to t' the Shareholding Ministers, with the objective of achieving a commercial return for own. The company website states wing; Otakaro Limited has be? blished and incorporated by the Crown to take over some of the Earthquake Recovery Authority from April 2016. functions of the Ca The company capitalised and funded by the Crown but act as a company, accountable to its Boar ur ole is to ensure the work already in play accelerates with minimal disruption and Mag? mmunity maintains confidence in the city centre?s major projects and precincts and der to decide whether Otakaro limited is an agency or instrument of the executive emment (and therefore a ?public office"), an assessment has been undertaken of the elevance and weighting of various control factors. ome they will provide for Christchurch. 2 On the weighting of the factors noted below, Otakaro Limited is not an agency or instrument of the executive and is therefore not subject to the requirements of the Public Records Act 2005. Page 1 of 6 2.1 Factors strongly for/against For: there are none. Against: 2.2 Factors moderately for/against For: Against: 2.3 Factors weakl @ainst For: Acts of Ot?karo Limited are not acts of the responsible ministers. The Board is responsible for the acts of the Company. The Crown is not liable to contribute towards the payment of any debts or W3 of a Schedule 4A company (section 49, Public Finance Act 1989). ?5 statement of intent and own Entities Act 2004). Otakaro Limited has considerable freedom in its business decisions. While it is required to act consistently, with reconstruction and regeneration plans, little scope exists for the Crown giving direction as to how the directors of Ot?karo Limited business decisions. The shareholding Ministers may comment on Otakaro Li direct Ot?karo Limited to make amendments (section Limited at any time and can request, and Otak ited must supply, information on the operations and performance of the Com 3 section 132 and 133, Crown Entities Act 2004). Incorporated under the Companies Act 1993. It The shareholding Ministers can review the operagicitvnd performance of Ot?karo Otakaro Limited is a Crown Co is not a statutory body. The Public Finance Acp?s Schedule 4A companies from its de?nition of the Crown. 2 r?ited is subject to the same statutory requirements as Crown entity ies in terms of its formation, acquisition of shares, presentation of a constitution House of Representatives, and the provision of information to shareholders Ot? ctions 79 and 81-85 Crown Entities Act 2004). <3 <33? Otakaro Limited?s financial statements are audited by the Auditor-General. (section 15 Public Audit Act 2001 ).There are also restrictions on Ot?karo Limited?s ability to acquire securities, borrow, give guarantees and indemnities and use derivatives (sections 150, 156, 161-164, Crown Entities Act 2004). The Minister of Finance and the Minister of State Services can jointly direct Ot?karo Limited to follow a whole-of?govemment approach (section 107, Crown Entities Act 2004) The shareholding Ministers can appoint and remove members of the board (clauses 12.3 and 12.4 of the Constitution). Page 2 of 6 Against: there are none. 2.5 Neutral Factors Shareholding Ministers in Otakaro Limited can make resolutions about the management of Otakaro Limited (section 109, Companies Act 1993 and clause 9.4 of the Constitution). The shareholding Ministers may make comments on Otakaro Limited?s draft statement of performance expectations and direct amendments to some of the information in that statement (sections 1493-149M, Crown Entities Act 2004). Otakaro Limited is wholly Government owned currently but must maintain at least 50% 0 Crown ownership (clause 4.2a of the Constitution). The Minister of Finance may issue instructions to Otakaro Limited relating to m' requirements for publication of information that Otakaro Limited would have ish under the Public Finance Act, the non-financial reporting standards Otak Ited must apply and the form in which Otakaro Limited must provide the inf ?lm to the House (sections 80A and 81, Public Finance Act 1989). Schedule 4A companies are ?state services? under the State 6.1% 1988. 3 The Ombudsman Act 1975 and the Official Informw 1982 apply to Otakaro Limited. Page 3 of 6 Factor For Against weighting Strongly 0 There are none 0 Acts of Otakar are not acts of the responsible ministers. Th rd is responsible for the acts of the Compa Ot?k %ited has considerable freedom in its bl? decisions. Little scope exists for the Crown direction as to how the directors of Otakaro $ted make business decisions. The Crown is not liable to contribute towards the payment of any debts or liabilities of a Schedule 4A company (section 49, Public Finance Act 1989). (1Q Moderately The shareholding Ministers can review the operations 0 Otakaro Limited is a Crown Company incorporated under performance of Ot?karo Limited at any time and ca t, and the Companies Act 1993. It is not a statutory body. Otakaro Limited must supply, information on rations and . . performance of the Company (section 132 an rown Entities The ?nance SChedU'e 4A Act 2004). companies from its de?nition of the Crown. .2 Weekly 0 Otakaro Limited is subject to thes ?may requirements as . There are none Crown entity companies in terms ormation, acquisition of shares, presentation of a con to the House of Representatives, and the pr '3 of information to shareholders (sections 79 and 81-85 @n Entities Act 2004). - Otakaro Limited @statements are audited by the Auditor- General. (secti %ubllc Audit Act 2001 ).There are also restrictions (yr; ro Limited?s ability to acquire securities, V. Page 4 of 6 borrow, give guarantees and indemnities and use derivatives (sections 161-164, Crown Entities Act 2004). The Minister of Finance and the Minister of State Services can jointly direct Ot?karo Limited to follow a whole-of-government approach (section 107, Crown Entities Act 2004). The shareholding Ministers can appoint and remove members of the board (clauses 12.3 and 12.4 of the Constitution), Shareholding Ministers in Otakaro Limited can make resolutions about the management of Otakaro Limited (section 109, Companies Act 1993 and clause 9.4 of the Constitution). The shareholding Ministers may make comments on Otakaro Limited?s draft statement of performance expectations and dire amendments to some of the information in that statement (5 1498-149M, Crown Entities Act 2004). Otakaro Limited is wholly Government owned curre ly Qnust maintain at least 50 Crown ownership (clause the Constitution). The Minister of Finance may issue instru Otakaro Limited relating to minimum requirements for mg on of information that Otakaro Limited would have to publ' the Public Finance Act, the non-financial reporting st Otakaro Limited must apply and the form in which 0 - information to the House (s i0 8 8 A and 81, Public Finance Act 1989) Schedule 4A com Act 1988. p%@re ?state services? under the State Sector Qg/ Page 5 of 6 6? Relevant Sources Include: 0 Companies Of?ce website - company 5891655 Companies Act 1993 Crown Entities Act 2004 Public Finance Act 1989 State Sector 1988 ?0 Page 60f6