Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Telecommunications (TSO, Broadband, and Other Matters) Amendment Bill (Consistent) (Sections 5, 14, 21) [2010] NZBORARp 81 (4 November 2010)

Last Updated: 27 May 2020

Telecommunications (TSO, Broadband, and Other Matters) Amendment Bill

4 November 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: TELECOMMUNICATIONS (TSO, BROADBAND, AND OTHER MATTERS) AMENDMENT BILL

1. We have considered whether the Telecommunications (TSO, Broadband, and Other Matters) Amendment Bill (PCO 14440/2.6) (“the Bill”) is consistent with the New Zealand Bill of Rights Act 1990 (“Bill of Rights Act”). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on Thursday, 11 November 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 possible inconsistencies with ss 14 (freedom of expression) and 21 (unreasonable search and seizure) of that Act.

PURPOSE

3. The Bill amends the Telecommunications Act 2001 (“the Act”) to support the implementation of the Government’s policy programme for the telecommunications sector. The key initiatives are the Ultra-fast Broadband Initiative (“UBI”), the Rural Broadband Initiative (“RBI”) and reforms to the Telecommunications Service Obligations (“TSO”) framework.

4. Part 1 of the Bill amends the basis for calculating the net cost of deemed TSO instruments

and introduces a new Telecommunications Development Levy. Part 2 inserts a new Part 4AA in the Act to establish a regulatory framework for the telecommunications networks that will be developed under the UFB and the RBI.

ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT Freedom of Expression

5. 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]

6. Taking into account the various domestic and overseas judicial pronouncements on the issue, we adopt a two-step inquiry to determine whether an individual’s freedom of expression has been infringed. The first step involves a determination of whether a particular activity falls within the freedom of expression. The second step is to determine whether the purpose or effect of the proposed government action is to restrict that freedom. [2]

Application of Section 14 to the Bill

7. Clause 11 of the Bill substitutes new subparts 2 and 2A of Part 3. Subpart 2 provides the procedure for the Commission to determine the amount of the new telecommunications

levy and imposes an obligation on each liable person to pay that amount to the Crown. New ss 81, 82, 83, 94B and 100BA(2) and (3) enable the Commerce Commission to require the relevant parties to provide information. Under s 101(1)(b) the Governor-General may, by Order in Council, make recommendations which prescribe the information that must be provided under s 83.

8. Clause 24 inserts new Part 4AA. Sections 156AW and 156AX enable the Commission to require fibre-to-the-premise (“FTTP”) providers to disclose information concerning costs and characteristics of relevant services and the FTTP access networks used to provide relevant services.

9. The Bill also has a penalty for a failure to provide certain information. Clause 18 amends s

156A of the Act. Under the amended s 156A, a person who fails, without reasonable excuse, to provide information in accordance with ss 81, 82, 83, 94B or 100BA(3) is liable to a pecuniary penalty of up to $300,000.

10. The imposition of a penalty creates a clear element of compulsion. Despite this, it is arguable whether any of the disclosure requirements in the Bill amount to compelled “expression” for the purposes of s 14 of the Bill of Rights Act. This is because liable persons and TSO providers are not required to express opinions or ideas but simply to provide factual information. But while much of the compelled information may be of a purely

factual nature, even that information could contain expressive content when considering the role of information within telecommunications sector.

11. We have therefore considered whether the relevant clauses are justifiable under s 5 of the

Bill of Rights Act. Where a provision is found to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable

limit that is justifiable in terms of s 5 of that Act. Following the guidance of the New Zealand

Supreme Court decision of Hansen v R, the s 5 inquiry may be summarised as: [3]

a) does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?

b) If so, then:

a. is the limit rationally connected with the objective?

b. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?

c. is the limit in due proportion to the importance of the objective?

12. The disclosure of relevant information by liable persons and TSO providers is designed to enable more effective regulation of telecommunications services. This is a significant and important objective. The purpose of these provisions is to streamline the administration of TSO instruments, consolidate the statutory mechanism for industry funding of telecommunications service and sector development obligations and establish a regulatory framework for enhanced broadband networks. Accordingly, we consider that the provisions of the Bill that create a limit on freedom of expression are rationally linked to the objective.

13. The telecommunications sector is highly regulated in order to provide transparency and accountability. The compelled information is purely factual information of a commercial nature and so does not have a high personal privacy value. This information is of a type that market participants can reasonably be expected to provide in this regulatory context. We therefore consider that the limits placed on the right to freedom of expression appear to be

in due proportion to the importance of those objectives and are therefore justified under s 5 of the Bill of Rights Act.

Unreasonable search and seizure

14. Section 21 of the Bill of Rights Act affirms the right to be secure against unreasonable search or seizure, whether of the person, property, correspondence or otherwise.

15. Clause 6 amends s 16(b) of the Act to extend the power to issue a search warrant under s

98A of the Commerce Act for the purpose of obtaining information and documents requested by the Commission under new ss 82(b) or 83(1)(a) but which have not been provided within the required time. These new sections are inserted by cl 11.

16. The amendment replicates the power under s 98A for the purposes of the new charging regime in new subpart 2 of Part 3. It allows a search warrant to be issued for the purposes of obtaining information and documents requested by the Commission to enable it to verify the turnover of a person for a particular financial year (s 82(b)), and for the purposes of

enabling the Commission to determine the amount of a liable person’s qualified revenue for a financial year (s 83(1)(a)).

17. The objective of these search powers is to enable the Commission to determine, in accordance with new s 88 the amount of the annual telecommunications levy specified that is payable by each liable person to the Crown. The search warrant can only be issued under s 98A of the Commerce Act where there are reasonable grounds to believe that it is necessary for the purpose of ascertaining whether or not a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of this Act. The Commerce Act sets out the procedural safeguards around the execution of the search warrant, such as those governing production of the warrant on entry, evidence of identity, notice requirements in cases where an occupier is not present for the search, and the itemisation of articles removed.

18. We consider that there are sufficient procedural safeguards in place for the extended application of s 98A of the Commerce Act to constitute a reasonable search and seizure power pursuant to s 21 of the Bill of Rights Act.

Conclusion

19. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed by 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 v Attorney-General of Canada (1995) 127 DLR (4th) 1.

2. Ross v New Brunswick School District No 15 [1996] 1 SCR 825.

3. The proportionality test under s 5 of the Bill of Rights Act, as applied in Hansen v R [2007]

NZSC 7 [123], draws on the test articulated by the Canadian Supreme Court in R v Oakes

[1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713 and R v Chaulk [1990] 3

SCR 1303. See for example, Hansen, at [42] per Elias CJ; [64] and [79] per Blanchard J; [103], [104] and [120]-[138] per Tipping J; [185] and [217] per McGrath J; and [272] per Anderson J.

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 Telecommunications (TSO, Broadband, and Other Matters) 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.