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New Zealand Superannuation Amendment Bill (Consistent) (Sections 19(1), 27(3)) [2004] NZBORARp 18 (25 March 2004)
Last Updated: 19 March 2021
New Zealand Superannuation Amendment Bill
25 March 2004
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
New Zealand Superannuation Amendment Bill
- We
have considered whether the New Zealand Superannuation Amendment Bill (the
"Bill") (PCO 5475/6) is consistent with the New Zealand
Bill of Rights Act 1990
("Bill of Rights Act"). We understand that the Bill will be considered by the
Cabinet Legislation Committee
at its meeting on Thursday, 1 April
2004.
- The
Bill will:
- repeal the
Retirement Income Act 1993; and
- include, with
some alterations, the provisions relating to the functions and powers of the
Retirement Commissioner in the New Zealand
Superannuation Act
2001.
- We
have concluded that the Bill does not appear to be inconsistent with the Bill of
Rights Act.
- In
reaching this conclusion, we considered potential issues of inconsistency with
sections 19(1) and 27(3) of the Bill of Rights Act.
Our analysis of these
potential issues is set out below.
ISSUES OF INCONSISTENCY WITH
THE BILL OF RIGHTS ACT
Section 19(1): the right to be free from discrimination
- Section
19(1) of the Bill of Rights Act provides the right to freedom from
discrimination on the grounds set out in section 21 of
the Human Rights Act
1993. These grounds include, inter alia, ethnic or national origin, sex,
and disability.
- In
our view, taking into account the various domestic and overseas judicial
pronouncements as to the meaning of discrimination, the
key questions in
assessing whether discrimination under section 19(1) exists are:
(i) Does
the legislation draw a distinction based on one of the prohibited grounds of
discrimination?
(ii) Does the distinction involve disadvantage to one or more
classes of individuals?
- If
these questions are answered in the affirmative, we consider that the
legislation gives rise to a prima facie issue of "discrimination" under
section 19(1) of the Bill of Rights Act. Where this is the case, the legislation
falls to be justified
under section 5 of the Bill of Rights
Act.
Clause 5, new section 84(3)(c) - Appointment of
Commissioner
- Clause
5, new section 83(3)(c) states that any person who is the subject of a specific
order under the Protection of Personal and
Property Rights Act 1988 ( the "PPPR
Act") is not able to be appointed as the Commissioner. Individuals who are
subject to a specific
order may have a disability potentially giving rise to a
distinction on the prohibited ground of disability (section 21(h) Human
Rights
Act).
- The
effect of this provision is to treat persons subject to a PPPR Act order
differently from those who are not subject to an order.
Bearing in mind the
responsibilities and liabilities attached to the office of Commissioner, and the
protections in the PPPR Act
concerning the making of orders under that Act, we
consider such a disqualification is justified in terms of section 5 Bill of
Rights
Act.
New schedule 6, clause 12(2) - Commissioner to be
good employer
- New
schedule 6, clause 12(2) requires the Commissioner to operate a personnel policy
that recognises of the aims, aspirations, and
employment requirements of Maori,
and the need for involvement of Maori as employees. Clause 12(2) also requires
the Commissioner
to recognise the aims, aspirations, and cultural differences of
ethnic and minority groups; and the employment requirements of women,
and
persons with disabilities. In some cases, specific measures for identified
groups can raise prima facie issues of discrimination under section 19(1)
of the Bill of Rights Act.
- However,
given that clause 12(2) is worded in such a way as to be inclusive of all
cultural groups and sectors of the community, we
do not consider an issue of
prima facie discrimination arises in this instance. This is because the
Commissioner:
- must
be a "good employer", which includes operating a personnel policy containing
provisions generally accepted as necessary for the
fair and proper treatment of
employees in their employment (including having an equal employment
opportunities programme);
- must
impartially appoint suitably qualified persons to a position;
and
- is
required only to recognise aims, aspirations, and/or employment
requirements of Maori, ethnic and minority groups, women, and persons with
disabilities (i.e:
the provision does not require preferential
treatment).
Section 27(3): the right to bring, and to
defend against, civil proceedings involving the Crown
- Section
27(3) of the Bill of Rights Act affirms the right of a person when suing, or
being sued by, the Crown to have that litigation
conducted in the same way that
litigation between two individuals would be conducted. Clause 5, new section 91
(No compensation for
cessation of office) provides that a person is not entitled
to compensation if he or she is removed from office. This clause could
be
perceived as giving rise to an issue under section 27(3) of the Bill of Rights
Act.
- We
have previously advised you that the right protects an individual's ability to
enforce the law against the Crown in the conventional
way in the ordinary court.
That is different from guaranteeing a cause of action against the Crown. Section
27(3) does not guarantee
there will be certain measures of success when a person
sues the Crown. Rather, it affirms rights relating to procedure by which
Crown
liability, where it exists under law, can be established at the suit of an
individual person.
- Following
the decision of McGechan J in Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001]
1 NZLR 40, section 27(3) does not affirm a right to immunity from alterations in
the substance of the law that may serve to limit or remove
any basis for Crown
liability, and thus reduce or even eliminate the prospects of success by an
individual in suing the Crown. This
point applies even when litigation is
current or concluded. Consequently, new section 91 falls outside the right to
bring, and to
defend against, civil proceedings involving the
Crown.
CONCLUSION
- We
have concluded that the Bill does not appear to be inconsistent with the Bill of
Rights Act. In accordance with your instructions,
we attach a copy of this
opinion for referral to the Minister of Justice. A copy is also attached for
referral to the Minister of
Social Services and Employment, if you
agree.
Allison Bennett Principal Adviser Office of Legal Counsel
|
Stuart Beresford Senior Legal Adviser Bill of Rights/Human Rights
Team
|
Cc Minister of Justice Cc Minister of Social Services and
Employment
|
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the New
Zealand Superannuation Amendment Bill. It should not be used or acted upon for
any other purpose. The advice
does no more than assess whether the Bill complies
with the minimum guarantees contained in the New Zealand Bill of Rights Act. The
release of this advice should not be taken to indicate that the Attorney-General
agrees with all aspects of it, nor does its release
constitute a general waiver
of legal professional privilege in respect of this or any other matter. Whilst
care has been taken to
ensure that this document is an accurate reproduction of
the advice provided to the Attorney-General, neither the Ministry of Justice
nor
the Crown Law Office accepts any liability for any errors or omissions.
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