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Social Assistance (Debt Prevention and Minimisation) Amendment Bill (Consistent) (Section 27(1) [2007] NZBORARp 11 (1 June 2007)

Last Updated: 2 January 2019


Social Assistance (Debt Prevention and Minimisation) Amendment Bill

1 June 2007

Attorney-General

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

SOCIAL ASSISTANCE (DEBT PREVENTION AND MINIMISATION) AMENDMENT BILL

1. We have assessed whether the Social Assistance (Debt Prevention and Minimisation) Amendment Bill (‘the Bill’), (PCO 8056/6) is consistent with the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that this Bill will be considered by Cabinet at its meeting on 5 June 2007.

2. We have concluded that the Bill appears to be consistent with the rights and freedoms contained in the Bill of Rights Act. In reaching this conclusion, we considered a potential issue of inconsistency with section 27(1) of the Bill of Rights Act. Our analysis of this issue is set out below.

PURPOSE OF THE BILL

3. The Bill amends the Corrections Act 2004 to:

• enable a prisoner’s benefit, allowance or student loan to be suspended at the earliest

possible date after an information match has identified a discrepancy; and

• allow information to be used to identify prisoners inappropriately receiving Student Loans or

Student Allowances

4. The Bill also provides a further amendment to the Corrections Act 2004 and an amendment to the Customs and Excise Act 1996 to extend the existing information matches between the Ministry of Social Development (MSD), the Department of Corrections and the New Zealand Customs Service. This amendment will allow MSD to use the information for debt recovery purposes.

ISSUE OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT

Section 27(1): Right to natural justice

5. Section 27(1) of the Bill of Rights Act provides that every person whose interests are affected by a decision by a public authority has the right to the observance of the principles of natural justice. One of the fundamental principles of natural justice is the right to be heard.

6. Clause 5 (new section 180C) raises an issue of natural justice as it provides that the Chief Executive may immediately suspend an individual’s benefit, allowance or student loan after an information match has disclosed one or more discrepancies. We have considered whether this provision, by allowing the Chief Executive to suspend an individual’s benefit,

allowance or student loan without first hearing from the individual concerned, is inconsistent with section 27(1).

7. In our view, clause 5 does not restrict the right to natural justice as various safeguards will be employed to alleviate any disadvantage or other problems encountered by individuals who have been incorrectly identified and had their payments suspended. In reaching this conclusion, we note that MSD proposes to write immediately to everyone whose payments will be suspended, and invite them to contact MSD urgently if they consider that they have been wrongly identified and remain entitled to receive payments.

8. MSD advises that under the current proposal only a small proportion of persons incorrectly identified should have their payments suspended, as the majority will receive MSD’s letter before the next payment date, and once they contact MSD to confirm their continuing eligibility the payment will continue.

9. Further, MSD advises that where a payment has been missed due to an incorrect match, a corresponding payment will be made to the affected person’s bank account overnight, in addition to restarting the regular payments. In such cases MSD will cover any costs incurred by the affected party, for example bank fees and penalty payments.

CONCLUSION

10. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Melanie Webb

Manager, Ministerial Advice

Office of Legal Counsel

Margaret Dugdale

Policy Manager, Bill of Rights/Human Rights

Public Law Group

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 Social Assistance (Debt Prevention and Minimisation) 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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