You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2004 >>
[2004] NZBORARp 36
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Resource Management Amendment Bill (No 4) (Consistent) (Section 27(1)) [2004] NZBORARp 36 (1 November 2004)
Last Updated: 21 March 2021
Resource Management and Electricity Legislation Amendment Bill
1 November 2004
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT
1990:
RESOURCE MANAGEMENT AMENDMENT BILL (No 4)
[1]
- We
have considered the Resource Management Amendment Bill (No 4) (PCO version
6193/1) for consistency with the New Zealand Bill of
Rights Act 1990 (the "Bill
of Rights Act"). We understand that this Bill is to be considered by the Cabinet
Legislation Committee
at its meeting on 4 November 2004. We received this Bill
last Thursday and have consequently been asked to consider this Bill under
some
urgency.
- The
Bill amends the Resource Management Act 1991 ("the RMA"). The explanatory note
to the Bill states that the intention of the amendments
is to improve the
"quality of decisions and processes" within the RMA framework by "increasing
certainty and reducing delays, costs
and incorrect use of processes, while
ensuring appropriate public participation and the meeting of environmental
objective."
- The
key measures in the Bill therefore:
- establishes a
requirement that the majority membership of hearings panels are "accredited" for
hearing resource consents, private
plan changes, designation and heritage order
hearings:
- empowers all
hearings panels with more inquisitorial powers;
- focuses appeals
in the Environment Court on testing the merits of the first (local authority)
hearing;
- provides new
mechanisms for non-local decision making that build on the existing ministerial
call-in processes;
- streamlines the
plan making process;
- provides an
assurance for business that existing investment is recognised when consents
expire and need to be reapplied for;
- gives greater
strategic importance to regional policy statements; and
- provides for
notification decisions of consent authorities to be challenged in the
Environment Court.
- We
have considered whether the measures in this Bill raise issues of consistency
with the Bill of Rights Act. We have given particular
consideration to whether
the changes in the hearings process and the role of the Environment Court raise
issues with the right to
the observance of the principles of natural justice
(section 27(1)). We are mindful that the requirements of natural justice are
flexible in practice, the scope and content of which adapts to the particular
policy context and decision-making
process.[2] In other
words, the principal consideration appears to be whether, on balance, the
process appears to be fair in that particular
situation.[3]
- We
have looked to the intention of this Bill (as set out in paragraph 2) and, on
this basis, we consider that the Bill appears to
be consistent with the Bill of
Rights Act.
Conclusion
- We
have considered whether provisions of the Resource Management Amendment Bill (No
4) raise issues of consistency with the Bill of
Rights Act, and principally
section 27(1) of that Act. We have come to the conclusion that the Bill appears
to be consistent 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
for the Environment and Hon Dr Michael Cullen, Leader of the House, if you
agree.
Roger Palariet
|
Boris van Beusekom
|
Acting Chief Legal Counsel
|
Senior Adviser
|
Office of Legal Counsel
|
Bill of Rights/Human Rights Team
|
cc
Minister of Justice
Minister for the Environment
Leader of the
House
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 Resource
Management and Electricity Legislation 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
[1] The title of the
Bill vetted by the Ministry was the Resource Management Amendment Bill (no 4).
The name of the Bill was subsequently
changed and introduction version of the
Bill is the Resource Management and Electricity Legislation Amendment Bill. The
substance
of the Bill remained the
same.
[2] See Drew
v A-G (No 2) [2001] NZCA 107; (2001) 18 CRNZ 460 (CA) at 479 and Daganayasi v Minister of
Immigration [1980] 2 NZLR 130 at
139.
[3] Potter J in
P v Department of Child, Youth and Family Services [2001] NZHC 601; [2001] NZFLR 721 at
753
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2004/36.html