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Electricity (Renewable Preference) Amendment Bill (Consistent) (Section 21) [2010] NZBORARp 27 (18 May 2010)

Last Updated: 2 September 2019

LPA-01-01-14

18 May 2010 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: ELECTRICITY (RENEWABLE PREFERENCE) AMENDMENT BILL

1. We have considered whether the Electricity (Renewable Preference) Amendment Bill (‘the Bill’), a Member’s Bill in the name of Chris Hipkins MP, is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’). The Bill was introduced into the House of Representatives on 6 May 2010 and is currently awaiting its first reading. We understand that the next Members’ Day is scheduled for Wednesday, 26 May 2010.
2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching that conclusion, we have considered potential issues of inconsistency with s 21 (right to be free from unreasonable search and seizure) of that Act. Our analysis is set out below.

Purpose of the Bill

3. The Bill amends the Electricity Act 1992 (‘the Act’). The purpose of the Bill is to re- enact a ban on the thermal generation of electricity that was included in the Electricity (Renewable Preference) Amendment Act, enacted in September 2008, and repealed in December 2008 by the Electricity (Renewable Preference) Repeal Bill.
4. Clause 5 of the Bill inserts a new Part 6A (Restriction on new fossil-fuelled thermal electricity generating capacity) into the Act. The stated purpose of new Part 6A is to reduce the impact of fossil-fuelled thermal electricity generation on climate change. It does so by creating a preference for renewable electricity generation through the implementation of a 10-year restriction on new baseload fossil-fuelled thermal electricity generation capacity. The Bill allows for exemptions where appropriate (for instance, to ensure security of supply).
   

POSSIBLE ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT

Section 21 – Right to be Secure against Unreasonable Search and Seizure

5. Section 21 of the Bill of Rights Act provides that:

“Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, correspondence or otherwise.”

6. There are two limbs to the s 21 right. First, s 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, s 21 protects only against those searches or seizures that are "unreasonable" in the circumstances.

Clause 7 – Party must co-operate with investigations

7. By virtue of cl 7, which amends s 172KB (Party must co-operate with investigations) of the Act, every industry participant must co-operate fully with any investigation carried out by the Electricity Commission (‘the Commission’) for the purposes of monitoring or enforcing new Part 6A. Under s 172KB, industry participants must:
   • provide all information, papers, recordings, and documents in the possession, or under the control, of the industry participant that are requested for the purpose of the investigation
   • permit its officers or other employees to be interviewed
   • give the Commission full access to any premises at which the industry participant carries on business or maintains records, and
   • give all other assistance that may be reasonable and necessary to enable the matter to be fully investigated.
8. The requirements in s 172KB of the Act constitute a search for the purposes of s 21 of the Bill of Rights Act.1 We have, therefore, considered cl 7 for consistency with s 21.
9. In our view, the requirements in s 172KB of the Act (as amended by cl 7) are reasonable because:
   • the electricity sector is heavily regulated and industry participants would have limited expectations of privacy in relation to the information sought by the Commission2
   • the information sought by the Commission is necessary for it to monitor compliance with the proposed regulatory regime in new Part 6A, and any electricity governance regulations or rules, and
   • the Act provides appropriate limits and safeguards for the exercise of powers under s 172KB.3
10. We have therefore concluded that cl 7 is not inconsistent with s 21 of the Bill of Rights Act.

Clause 5, new section 62N – Commission may use information collected or provided under regulations or rules

11. One of the proposed sections of Part 6A is s 62N. This section will permit the Commission to use any information that is collected by, or provided to, the Commission under the electricity governance regulations or rules. The information may only be used in connection with the Commission’s powers or functions in relation to Part 6A, including:
    

1 New Zealand Stock Exchange v Commissioner of Inland Revenue [1992] 3 NZLR 1 (PC).

2 Trans Rail v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780, 790.

3 See s 172KD (Limits on investigation powers) and s 172KC(3) (relating to the inadmissibility of self incriminating statements or documents) of the Act.

• making recommendations on, or modifying, exemptions from s 62D (Restriction on connection and operation of specified generation plant), and
• monitoring compliance with new Part 6A.

12. Clause 5 does not provide for a power to require the disclosure of any information. However, it widens the purposes for which the information collected or provided under the electricity governance regulations or rules may be used. We have concluded that these purposes are reasonable. Clause 5, new s 62N does, therefore, not appear to raise an issue under s 21 of the Bill of Rights Act.

Conclusion

13. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.
    

Jeff Orr

Chief Legal Counsel Office of Legal Counsel