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Statutes Amendment Bill (No. 2) (Consistent) (Section 27(1)) [2007] NZBORARp 26 (20 August 2007)

Last Updated: 2 January 2019

Statutes Amendment Bill (No. 2)

20 August 2007

Attorney-General

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: STATUTES AMENDMENT BILL (No. 2)

1. In accordance with current arrangements, we have considered the non-Justice items in this year’s Statutes Amendment Bill (No. 2) for consistency with the New Zealand Bill of Rights Act 1990 ("the Bill of Rights Act") (PCO 8027/5). The Crown Law Office has similarly considered the Justice items (i.e. legislation administered by the Ministry of Justice) in the Bill. We understand that this Bill will be considered by the Cabinet Legislation Committee at its meeting scheduled for 23 August 2007.

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

3. In reaching this conclusion, we have analysed a potential issue of inconsistency with section 27(1) of the Bill of Rights Act. Our analysis of this potential issue is set out below.

PURPOSE OF THE BILL

4. 4. The Statutes Amendment Bill (No. 2) is an omnibus Bill comprising minor, technical and non-controversial amendments to various Acts.

NON-JUSTICE ITEMS

5. We have considered the proposed amendments to the following pieces of legislation which are intended to be included in the Bill, and advise that they are consistent

with the Bill of Rights Act:

Ministry of Agriculture and Forestry

• New Zealand Horticulture Export Authority Act 1987

• Biosecurity Act 1993

• Veterinarians Act 2005

Department of Conservation

• National Parks Act 1980

• Reserves Act 1977

Ministry of Culture and Heritage

• Historic Places Act 1993

Ministry of Economic Development

• Radiocommunications Act 1989

Ministry of Fisheries

• Fisheries Act 1996

Land Information New Zealand

• Cadastral Survey Act 2002

ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT Section 27: Right to Justice

6. Section 27(1) of the Bill of Rights Act provides the right to the observance of the principles of natural justice by any tribunal or any other public authority which has the power to make a determination in respect of that person‘s rights, obligations, or interests protected or recognised by law.

7. One amendment was identified as potentially giving rise to a prima facie issue of inconsistency with section 27(1) of the Bill of Rights Act.

The Veterinarians Act 2005

8. The Bill proposes to amend section 43 of the Veterinarians Act 2005 (the Act), which deals with decisions of the complaint assessment committee, by inserting a new subsection into this provision (new subsection 43(2A)).

9. The purpose of this new subsection is to allow the complaints assessment committee to make recommendations to the Council without investigating, or fully investigating, a complaint or referral if the committee considers that the complaint or referral –

(a) relates to the competence of a specified person; or

(b) relates to a medical issue; or

(c) requires urgent action by the Council

10. We have considered whether the ability of the complaints assessment committee to make a recommendation to the Council without investigating, or fully investigating a complaint raises issues of natural justice, particularly when the committee may

order the interim suspension of the specified person (sections 44 and 45 of the Act). As we have previously advised, natural justice includes the right to be informed of a complaint and to be able to respond to that complaint.

11. In our view, proposed new subsection 43(2A) of the Act does not raise an issue of inconsistency under section 27(1) of the Bill of Rights Act.

12. In reaching this decision, we have noted that the complaint would be adequately investigated at the Council level (see, for example, section 75(g) of the Act (Functions of Council)). Moreover, there are a number of due process safeguards built into the Act for those subject to medical or competence assessments. For instance, sections

55 (relating to medical assessments) and 58 (relating to competence assessments) stipulate that the person must be consulted about who will undertake the assessment, they must be given notice that an assessment is required and be informed of their right to refuse the assessment. Section 64 also provides a right of appeal to the District Court against decisions of the Council.

JUSTICE ITEMS

13. The Crown Law Office has considered the proposed amendments to the following pieces of legislation, and advises that there are no inconsistencies with the Bill of Rights Act arising from the proposed amendments:

Ministry of Justice

• Crimes Act 1961

• District Courts Act 1947

• Summary Proceedings Act 1957

• Criminal Investigations (Bodily Samples) Act 1995

Ministry of Defence

• Misuse of Drugs Act 1975

CONCLUSION

14. We have concluded that the Bill appears to be consistent with the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Stuart Beresford
Acting Manager
Bill of Rights/Human Rights Team

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 Statutes Amendment Bill (No. 2). 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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