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Energy Safety Review Bill (Consistent) (Section 21) [2005] NZBORARp 17 (13 May 2005)

Last Updated: 6 April 2021

Energy Safety Review Bill 2005

13 May 2005

Attorney-General

LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
ENERGY SAFETY REVIEW BILL 2005

1. We have considered the Energy Safety Review Bill (the "Bill") (PCO version 4931/8) 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 Policy Committee at its meeting on Wednesday, 11 May 2005.
2. The Bill raises issues of inconsistency with section 21 (the right to be secure against unreasonable search and seizure). We have come to the conclusion that the entry and inspection powers in the Bill are reasonable and therefore appear consistent with section 21.
3. The Bill therefore appears to be consistent with the Bill of Rights Act.

Overview of the Bill

4. The Bill amends the Electricity Act 1992, the Gas Act 1992, the Health and Safety in Employment Act 1992 and the Ministry of Energy (Abolition) Act 1989, and replaces the Plumbers, Gasfitters, and Drainlayers Act 1976 with the purpose of enhancing the existing electricity and gas safety regimes. The Bill:

• Introduces a competency based licensing regime for electrical and gas workers;
• Requires electrical and gas workers to meet both initial and on-going competency requirements for the issue and annual renewal of licences;
• Confirms the Health and Safety in Employment Act 1992 as the primary legislation covering electricity and gas safety in places of work, and that responsibility for public and product safety remain with the Energy Sector Acts;
• Aligns the disciplinary and appeal provisions in the Electricity Act, the Gas Act and the Plumbers, Gasfitters, and Drainlayers Act to ensure consistency across the sector;
• Amends the amount, range and, scope of penalties that may be imposed for disciplinary and other offences;
• Amends the Electricity Act and the Plumbers, Gasfitters, and Drainlayers Act to improve the investigation and prosecution of disciplinary offences committed by licensed energy workers;
• Makes other various amendments to improve the overall administration and effectiveness of the energy sector legislation.

Section 21: right to be secure against unreasonable search and seizure

5. Section 21 provides the right to be secure against unreasonable search and seizure. There are two limits to the section 21 right. First, section 21 is applicable only in respect of those activities that constitute a "search or seizure". Second, where certain actions do constitute a search or seizure, section 21 protects only against those searches or seizures that are "unreasonable" in the circumstances.

Entry and Inspection powers

6. Clause 12 of the Bill repeals and amends Parts 9 to 12 of the Electricity Act. The new section 81 of the Act provides that a person authorised by the Electrical Workers Licensing Board may enter at any reasonable time any premises including a dwellinghouse and inspect, test, and make inquiries about any prescribed electrical work. This power may be exercised whether or not there are grounds to believe that any prescribed electrical work has not been carried out properly. The purpose of this clause is to enable an authorised person to enter premises and to inspect and test prescribed electrical work on those premises to ensure compliance with prescribed standards. New section 81 constitutes a power of search and seizure for the purposes of section 21 of the Bill of Rights Act.
7. We consider that the powers of entry and inspection in new section 81 are reasonable and therefore consistent with section 21 because:

(a) The purposes of the inspection are limited to ensuring compliance with a worker’s licence and any enactments, and ensuring the work was carried out in a competent and safe manner (new section 81(1));

(b) The manner in which the power can be exercised is clearly set out (must give reasonable notice of intention to enter any premises (new section 81(3), the requirement to produce evidence of authority to enter and evidence of the person’s identity (new section 81(4));

(c) The power to carry out the random checks is necessary to ensure the ongoing integrity of the safety framework (new section 80); and

(d) An authorised person may only enter premises at a reasonable time (new section 81(1)).

8. New section 115 of the Electricity Act also provides that every employer licence is subject to a condition that their premises may be inspected. The Electrical Workers Licensing Board may authorise a person to inspect premises occupied by the employer licence holder, or to require the employer licence holder to produce any document or information for inspection. Parts 5 to 8 of the Bill repeal and replace the Plumbers, Gasfitters and Drainlayers Act 1976. Clause 112 of the Bill[1] inserts equivalent provisions into the proposed new PGD Act and provides the Plumbers, Gas Fitters and Drainlayers Board with identical powers. New section 115 of the Electricity Act and clause 112 of the Bill constitute a power of search and seizure for the purposes of section 21 of the Bill of Rights Act.
9. We consider that the powers of inspection in new section 115 and clause 112 are reasonable and therefore consistent with section 21 because:

(a) The authorised purposes, which are limited to ensuring compliance with the terms and conditions of the employer licence and ensuring that the work done under the licence is carried out safely, competently, and in accordance with the law, are explicitly set out in the Act (new section 115(5) and clause 112(5)), ;

(b) The manner in which the power can be exercised is clearly set out. A person must give reasonable notice of their intention to enter any premises as long as notice would not defeat the purpose of the inspection (new section 115(3) and clause 112(3)). They must also produce evidence of authority to enter and of their identity (new section 115(4) and clause 112(4)).

Investigator’s enforcement powers

10. New section 139 of the Electricity Act and clause 136 provide for an investigator to be appointed by the respective Boards to investigate a complaint regarding a licensed worker. The powers the investigator has when executing this function are set out in the Bill and include the power to enter and re-enter land or premises and require a person to supply information or documents. The powers of the investigator constitute search and seizure powers in terms of section 21 of the Bill of Rights Act.
11. We consider that the investigator’s enforcement powers in new section 139 and clause 136 are reasonable and therefore consistent with section 21 because:

(a) The Secretary of the relevant Board must supply to the investigator a warrant of authority stating the provision under which the investigator is acting, the powers conferred on the investigator and the name of the investigator (new section 140 of the Electricity Act and clause 137);

(b) The investigator must carry with them the warrant and must surrender the warrant to the Secretary on the termination of their authority to act (new section 141 and clause 138);

(c) Before entering a dwellinghouse the investigator is required to either obtain the consent of the occupier or an order from the District Court. The investigator must give notice to the occupier that they intend to seek a District Court order (new section 142 and clause 139).

(d) In relation to a request by an investigator for the supply of information or documents a person has the same privileges as a witness in court (i.e. they cannot be required to incriminate themselves) (new section 139(3) and clause 136(3));

(e) As stated above, the purpose of the Bill is to improve the safety regime in the energy sector. Because of the risk that electricity and gas workers pose to public safety it is important to have an effective complaints system where any concerns about work done are investigated properly to ensure compliance and safety.

Conclusion

12. Overall, we have formed the view that the entry and inspection powers, in light of the restrictions and safeguards outlines above, are reasonable and therefore, not inconsistent with section 21 of the Bill of Rights Act.
13. In accordance with previous practice, we attach a copy of this opinion for referral to the Minister of Justice. We also attach a copy for referral to the Ministers of Energy and Health, if you agree.

[1] References to clause numbers for the remainder of this advice refer to the new provisions of the PGD Act.