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Ethical Investment (Crown Financial Institutions) Bill (Consistent) (Section 14) [2010] NZBORARp 30 (20 May 2010)

Last Updated: 2 September 2019

Ethical Investment (Crown Financial Institutions) Bill

20 May 2010 ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

ETHICAL INVESTMENT (CROWN FINANCIAL INSTITUTIONS) BILL

1. We have considered the Ethical Investment (Crown Financial Institutions) Bill (‘the Bill’), a Member’s Bill in the name of Grant Robertson MP, for consistency 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 a potential issue of inconsistency with s 14 of that Act (right to freedom of expression).
   

Purpose of the Bill

3. The Bill amends the Government Superannuation Fund Act 1956, the New Zealand Superannuation and Retirement Income Act 2001 and the Accident Compensation Act 2001. The purpose of the Bill is to provide a framework for socially responsible investment and accountability of investment decisions among the three Crown Financial Institutes (‘CFIs’) regulated by these Acts. To that end, the Bill sets out criteria that are consistent with internationally recognised norms and conventions for ethical and socially responsible investment. CFIs must instruct their fund managers to invest according to these criteria.
   

Section 14 – Freedom of Expression

4. Section 14 of the Bill of Rights Act affirms the right to freedom of expression, which includes the freedom to seek, receive and impart information and opinions of any kind and in any form. The right has been interpreted as including the right not to be compelled to say certain things or to provide certain information. [1]
5. Clause 7 of the Bill repeals s 16(2) of the Government Superannuation Fund Act and seeks to insert a new provision. This provision requires the Government Superannuation Fund Authority to disclose in its report to the Minister of Finance:
   

• the extent (if any) to which socially responsible or environmentally sustainable considerations and labour standards are taken into account in the selection, retention, or realisation of any of the authority’s investments, and
• any other information that the Minister may require.
  

Clauses 11 and 15 impose similar reporting requirements on the Guardians of New Zealand Superannuation and the Accident Compensation Corporation respectively.

We have considered whether the reporting requirements in cls 7, 11 and 15 limit the right not to be compelled to provide certain information as protected by s 14 of the Bill of Rights Act. For an activity to fall within freedom of expression, the activity must attempt to express an idea or meaning. [2] The information that needs to be disclosed under these clauses relates to the extent to

which certain factors have been taken into consideration in investing. As such, it is likely to be essentially of a factual nature. Consequently, we consider that the information is unlikely to be sufficiently expressive to engage s 14 of the Bill of Rights Act.

For completeness, we have considered whether, if the reporting requirement did involve the disclosure of potentially expressive information, this requirement is justifiable in terms of s 5 of the Bill of Rights Act. Clauses 7, 11 and 15 pursue the important objective of ensuring that the Government Superannuation Fund Authority, the Guardians of New Zealand Superannuation and the Accident Compensation Corporation maintain transparency about their investments. The

reporting requirements support the public’s right to receive information about investment and to be kept informed of the actions of these entities. In our view, there is a rational and proportionate connection between the reporting requirements and the objective of the Bill. As such, any restriction that these requirements may place on the right to freedom of expression would be justified.

Conclusion

We have reached the conclusion 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

Footnotes:

1. RJR-MacDonald Inc v Canada (Attorney-General) [1995] 3 SCR 199. 2. R v Keegstra [1990] INSC 224; [1990] 3 SCR 697, 729, 826.

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 Ethical Investment (Crown Financial Institutions) 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.