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Residential Tenancies Amendment Bill (Consistent) (Sections 25(c), 26(2), 27(1)) [2009] NZBORARp 24 (1 May 2009)

Last Updated: 28 April 2020

Residential Tenancies Amendment Bill

1 May 2009

Attorney-General

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: Residential Tenancies Amendment Bill

1. We have considered whether the Residential Tenancies Amendment Bill (PCO 13713/1.4) (the "Bill") is consistent with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights

Act"). We understand the Bill is likely to be considered by the Cabinet Legislation Committee on Thursday, 7 May 2009.

2. The Bill amends the Residential Tenancies Act 1986 (the "Act"). The purpose of the Bill is to encourage the development of a rental market while clarifying the rights and obligations of tenants and landlords. The key provisions in the Bill will:

• extend the protections in the Act to more individuals involved in the rental market, including for instance tenants in boarding houses
• clarify responsibilities as between landlords and tenants for the payment of outgoing expenses such as rates and electricity

• clarify the processes for terminating and renewing tenancies

• introduce new sanctions and increase the level of existing fines and exemplary damages

• enhance the operation of the Tenancy Tribunal and the enforceability of its orders.

3. We have concluded that the Bill does not appear to be inconsistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching this conclusion we have considered potential issues of consistency with sections 25(c), 26(2) and 27(1) of the Bill of Rights Act.

POTENTIAL ISSUES OF CONSISTENCY WITH THE BILL OF RIGHTS ACT Section 25(c) of the Bill of Rights Act: the presumption of innocence

4. Section 25(c) provides that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be presumed innocent until proved guilty according to law. This means that an individual must not be convicted where reasonable doubt as to her or his guilt exists. Therefore, the prosecution in criminal proceedings must prove, beyond reasonable doubt, that the defendant is guilty.

5. Strict liability offences give rise to prima facie issues of inconsistency with section 25(c) because the accused is required to prove (on the balance of probabilities) a defence; whereas, in other criminal proceedings an accused must merely raise a defence in an effort

to create reasonable doubt. This means, that where an accused is unable to prove the defence, she or he could be convicted even though reasonable doubt exists as to her or his guilt.

6. Clause 73 amends section 114 of the Act, which relates to the powers of entry of Tenancy

Mediators. Once amended, section 114(7) will provide every person commits an offence and is liable to a fine not exceeding $2,000 who, without reasonable excuse, obstructs or hinders any Tenancy Mediator in the exercise of the power of entry. The provision creates a strict liability offence, which reverses the onus of proof back onto the defendant. The reverse onus means the defendant is required to prove he or she had a reasonable excuse for obstructing or hindering a Tenancy Mediator from exercising his or her power of entry.

7. A provision containing a strict liability offence may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of section 5 of that Act. Clause 73 appears to be justifiable. First, the offence created can be described as regulatory in nature rather than a "truly criminal" offence, and such is not as severe.

Second, the person who has obstructed a Tenancy Mediator from entering is in the best position to justify his or her actions. Third, the penalty for the offence falls at the lower end of the scale.

8. The Bill also contains provisions that prohibit the commission of certain "unlawful acts" without reasonable excuse [1]. For example, clause 23 makes it an unlawful act for a tenant to fail, without reasonable excuse, to quit the premises on the termination of the tenancy.

9. Under the Act, upon application the Tenancy Tribunal determines whether an "unlawful act" has occurred on the balance of probabilities. If that is the case, the Tribunal may make an order for damages to be paid to the applicant. In deciding whether to make such an order the Tribunal is required to have regard to certain matters including the effect of the unlawful act and public interest. "Unlawful acts", therefore, are civil in nature and do not implicate section 25(c) of the Bill of Rights Act.

Section 26(2) of the Bill of Rights Act: double jeopardy

10. Section 26(2) of the Bill of Rights Act affirms the right of everyone not to be tried or punished twice for the same offence.

11. Clause 68 of the Bill enables the Tenancy Tribunal to issue an order restraining a person who has committed an unlawful act from committing further unlawful acts. Breach of a restraining order is an offence punishable on summary conviction to a fine of up to $2,000. Clause 67 permits the Tenancy Tribunal to issue an order awarding damages or exemplary damages for the subsequent unlawful act, even if the individual has been tried, convicted or acquitted of an offence for breaching a restraining order relating to the same unlawful act.

12. We have considered whether the fact that the Tenancy Tribunal can issue damages for an "unlawful act" under the Act subsequent or concurrent to a court’s determination of a

summary conviction for breach of a restraining order issued by the Tribunal, constitutes being tried or punished twice for the same offence in breach of section 26(2) of the Bill of Rights Act.

13. It is our view clause 67 does not breach 26(2) of the Bill of Rights Act as the provision deals with two separate and distinct components of a person’s conduct. The Tribunal’s determination of an "unlawful act" deals with a person’s civil infringement of the provisions of the Act, rather than a breach of a restraining order. The breach of a restraining order is a separate criminal matter outside the jurisdiction of the Tribunal.

Section 27(1) of the Bill of Rights Act: the right to natural justice

14. Section 27(1) of the Bill of Rights Act provides that everyone has the right to the observance of the principles of natural justice by any tribunal or 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. The right in section 27(1) affirms that decisions are made in a procedurally fair way. Natural justice requires, inter alia, that a decision- maker hears all parties, whether in writing or orally. The parties need to receive adequate notice of a decision, hearing or complaint.

15. Clause 60 of the Bill allows a Tribunal hearing to proceed, even where one party has not been served notice, provided that all reasonable efforts have been made to serve the party and the failure to do so is not due to any fault or unreasonable delay on the part of the applicant. Arguably, this could infringe upon the right of the other party to be heard, which is integral to the right to natural justice.

16. We are satisfied that the rights of section 27(1) of the Bill of Rights Act would not be infringed as there are several safeguards to ensure "all reasonable efforts" have been taken to serve a party to a Tribunal application. These include attempting to serve notice to the party’s address for service and checking publicly available records in an effort to locate the party for service. In addition, if a party did not receive notice of a hearing she or he could apply for a stay of proceedings and a rehearing under section 105 of the Act.

17. Furthermore, in considering whether section 27(1) has been infringed, the rights of the person who is to be served must be weighed against the rights of the other party involved. It would be unfair for a property owner to be prevented indefinitely from regaining possession following abandonment by their tenant, simply because the tenant cannot be served with the notice of an application for a possession order. We also note that the parties have a

duty to provide a current address for service and that one party should not be unfairly

disadvantaged due to the other party’s failure to do so.

18. For the foregoing reasons, we have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Helen Wyn General Manager Public Law

See clauses 23 (new section 40(3A) (a) and (d)), 40 (new section 61(5)) and 46 (new section

66X).

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 Residential Tenancies 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.