PIB 47 - Legal entities for the purposes of the Radiocommunications Act 1989
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Edition 001: May 2008
This is to provide information to assist in identifying whether a party has legal entity status and is therefore capable of holding a licence or management right under the Radiocommunications Act 1989.
The Ministry requires that clients must be legal entities before they can be granted licences, callsigns, or management rights under the Radiocommunications Act 1989.
To avoid non-legal entities being in appropriately granted licences, callsigns or Management rights all new clients, from the date of publication of this document must be checked against the following guidelines.
A “legal entity” is an organisation or body corporate that has legal status independent of its members or shareholders. A legal entity in the eyes of the law is able to own and dispose of property, enter contracts, sue and be sued, and be convicted of criminal offences.
A legal entity is capable of holding radio or spectrum licences independent of individuals who may be members or shareholders of the entity.
Certain associations or organisations are not considered to be legal entities, at least for the purposes of New Zealand law. These include partnerships and some forms of unincorporated associations. Details of these are set out below.
Guidelines: Legal entities that can hold a radio and/or spectrum licence
This guide will assist you to identify the legal entity status of new clients before they can be recorded in SMART.
Under no circumstance will the Ministry grant a licence to an organisation that does not have legal entity status.
The list of entities set out below is intended as a guide and is not definitive. There are a number of entities created under various Acts of Parliament, such as the NZ Racing Board and Maori Television Service which are not specifically listed. Where an applicant is claiming legal status by virtue of legislation, they need to be referred to RSM for research and confirmation before they are entered into SMART.
If you cannot establish the legal status of a particular applicant you should first request that the applicant provide details of the legal entity that will hold the licence. If the legal entity status of the party is still unclear refer the request to RSM for further investigation.
- Government Departments
Government departments are part of the Crown, which is a single legal entity. Accordingly, licences held by Government departments should be in the name of ‘Her Majesty the Queen in right of New Zealand acting by and through [name of department]’.
- Crown Entities / State Schools, Universities and Polytechnics
Under the Crown Entities Act 2004, crown entities can either be established as statutory entities or as crown entity companies. In either case they qualify as legal entities.
School Boards of Trustees and Tertiary Education Institutions established under the Education Act 1989 (such as universities and polytechnics) are recognised as categories of crown entities under the Crown Entities Act 2004 and are legal entities in their own right.
You can check the Ministry of Education website for a directory of education institutions.
- State Owned
- State owned enterprises are incorporated as limited liability companies in which Ministers of the Crown are shareholders. They are legal entities.
- Local and Regional Authorities
District health boards are established under the New Zealand Public Health and Disability Act 2000 and are legal entities.
City councils, district councils and regional councils are usually incorporated by statute and are also legal entities in their own right.
- New Zealand Companies
A limited liability company is a legal entity and usually identified by the words ’Limited’ or ‘Ltd’ being included in the company name.
The company must be registered under the Companies Act 1993 and be registered with the Companies Office. You must check the register of companies at www.companies.govt.nz to confirm the current registered status.
A company that has been STRUCK OFF the companies register is no longer a legal entity.
- Overseas Companies
Refer overseas companies to RSM.
Companies that are incorporated overseas are legal entities. Such companies may be registered under the Companies Act 1993 (Part 18) as an overseas company and have a New Zealand billing address when carrying out business in New Zealand.
The Register of Overseas Companies is maintained by the Companies Office, www.companies.govt.nz.
- Co-operative Companies
A Co-operative Company is a legal entity and is often identified by the words ‘Co-operative’ in conjunction with ‘Limited’ in the company name.
The company must be registered under the Co-operative Companies Act 1996 and registered under the Companies Act 1993 with the Companies Office.
You must check the register of companies www.companies.govt.nz to confirm the current registered status.
- Incorporated Societies and Industrial and Provident Societies
An Incorporated Society is a legal entity registered under the Incorporated Societies Act 1908 and identified by the word ‘Incorporated’ or ‘Inc.’ being included in the name of the society.
An Industrial or Provident Society is a legal entity registered under the Industrial and Provident Societies Act. Such societies can be identified by the words ‘Society Limited’ in the name.
These society must be registered with the Companies Office. You must check the ‘other registers’ section at www.companies.govt.nz to confirm the current registered status.
- Friendly Societies and Credit Unions
- Friendly Societies and Credit Unions do not have any legal entity status separate from their members. Licences held by credit unions or friendly societies should be registered in the name of individual trustees who are officers of the credit union or friendly society (refer to Trusts below).
- Charitable Trusts
A Charitable Trust is a legal entity established under the Charitable Trusts Act 1957 and can often be identified by inclusion of one or more of the words ‘Trust Board’, ‘Society’, or ‘Incorporated’ included in the name of the organisation.
A check of the ‘Other registers’ section of the Companies Office database www.companies.govt.nz is usually sufficient to confirm the current registered status. (Note: registration as a charity under the Charities Act 2005 does not necessarily confer legal entity status.)
- Trusts, including ‘Family Trusts’ are not legal entities in their own right unless they are registered as charitable trusts on the companies office database. Trusts are similar to partnerships in that a licence to be held by a trust should be registered in the names of all the individuals who are trustees of the trust.
- Maori Iwi
- Unless a Maori Iwi is registered as a Maori Trust Board within the meaning of the Maori Trust Board Act 1955 or as another form of incorporated body they are not be classified as having status as a legal entity. A Maori Trust Board is identifiable by the words Maori Trust Board at the end of the name. You can search the Maori Land Court records at: http://www.justice.govt.nz/maorilandcourt
- A Natural Person
- A natural person has the capacity of a legal entity and may enter into legal commitments, but may be subject to capacity rules, for example capacity may be questioned in relation to:
- a person who is a minor; or
- someone mentally impaired.
- Partnerships and Limited partnerships
The Limited Partnerships Act 2008 came into force on 2 May 2008. A limited liability partnership registered under that Act has separate legal personality and is capable of holding a licence. The Act also makes provision for the registration of overseas limited partnerships which are also legal entities. The registers of limited partnerships and overseas limited partnerships are maintained by the Companies Office and can be searched at: www.limitedpartnerships.govt.nz.
A partnership which is not registered as a limited partnership does not have status as a separate legal entity – it is an ‘unincorporated body’.
It will be possible for a partnership to apply for a radio or spectrum licence, but where this occurs; the names of all members of the partnership will need to be provided.
This is because the individuals that comprise the partnership have legal status as ‘natural persons’ where the partnership does not.
- A client type of “Club” must only be used for Amateur Radio Clubs. It is not to be used for other types of club such as yacht or racing clubs.
- The club will need to be some form of incorporated body to be a legal entity, such as an ‘Incorporated Society’. Otherwise the licence will need to be registered in the name of an individual or individuals on behalf of the club. Refer to RSM.