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Building Amendment Bill (No 3) (Consistent) (Sections 5, 25(c)) [2010] NZBORARp 85 (12 November 2010)

Last Updated: 27 May 2020

Building Amendment Bill (No 3)

12 November 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: BUILDING AMENDMENT BILL (No 3)

1. We have considered whether the Building Amendment Bill (No 3) (PCO 14012/10.0) (“the Bill”) is consistent with the New Zealand Bill of Rights Act 1990 (“the Bill of Rights Act”). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee on

18 November 2010.

2. The purpose of the Bill is to provide incentives for building professionals and trades people to take responsibility for the quality of their work. A recent review of the Building Act 2004 (“the Act”) found that there remains a heavy reliance on Building Consent Authorities for building quality and there are concerns about costs, complexity, and delays in building consent processes. Accordingly, the Bill amends the Act by:


• enhancing accountability under the licensed building practitioners regime

• making changes to enhance and clarify the building warrant of fitness regime.

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 25(c) (right to be presumed innocent) of that Act. Our analysis is set out below.

Right to be presumed innocent

Section 25(c) of the Bill of Rights Act affirms 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 his or her guilt exists. The prosecution in criminal proceedings must therefore prove, beyond reasonable doubt, that the accused is guilty.

By virtue of s 388 (strict liability and defences) of the Act the Bill contains the following strict liability offences:


• cl 18 (new s 84A: Offences relating to carrying out or supervising low-risk building work) –

liable to a fine not exceeding $20,000

• cl 18 (new s 84F: Owner must notify names of licensed building practitioners engaged in

simple residential building work) - liable to a fine not exceeding $20,000

Except for the offence in cl 22, the previously identified strict liability offences are already contained in the Act having been inserted by the Building Bill 2003 (78-1). Prior to its introduction, the Ministry assessed the Building Bill 2003 for consistency with the Bill of Rights Act. The Ministry concluded

that while the strict liability offences give rise to prima facie issues of inconsistency with s 25(c) of the Bill of Rights Act they appeared to be justified in terms of s 5 of that Act. While that advice remains persuasive, the Bill has been assessed afresh because of wording changes to these sections.

Do these offences pose a limit on s 25(c) of the Bill of Rights Act?

The strict liability offences in the Bill give rise to a limit on s 25(c) of the Bill of Rights Act because the accused is required to prove, on the balance of probabilities, a defence to escape liability. In other proceedings an accused must merely raise a defence in an effort to create reasonable doubt. Where an accused is unable to prove the defence, he or she could be convicted even though reasonable doubt exists as to his or her guilt.

Is this a justified limit under s 5 of the Bill of Rights Act?

Where a provision poses a limit on 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: [1]

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

(b) If so, then:

i. is the limit rationally connected with the objective?

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

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

In addition to the factors listed above, we consider the following factors are relevant in assessing whether the strict liability offences can be justified under s 5 of the Bill of Rights Act:

(a) the nature and context of the conduct to be regulated

(b) the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person

(c) the penalty level.

• Clause 4 of the Bill will insert a new purpose clause into the Act to:


• To achieve these objectives the strict liability offences seek to deter participants from

circumventing the building standards in the Act. The offence in new s 44 of the Act deters people from taking advantage of the exception for doing “urgent building work” to bypass the safeguards in the consent system. The offences in new ss 84A, 84D, 84F and 85 deter people who are not qualified to undertake or supervise particular building work from circumventing building consent conditions and undertaking or supervising that building work. Similarly, new s 87A deters unlicensed builders from using the new owner-builder exemption to bypass the safeguards in the consent system.

• We have also considered the penalty levels for the strict liability offences ($5,000 for new s

44 and $20,000 for new ss 84A, 84D, 84F, 85 and 87A) and have concluded that they are broadly proportionate to the potential harm caused for failing to meet the requirements of the Act. For example, new s 84A enables low risk building work to be done with fewer checks by the Building Consent Authority if a licensed building practitioner does the work. We understand that the $20,000 penalty level is intended to reflect the risk that the work will be inadequately completed leading to building failure or further maintenance costs if an unlicensed building practitioner does the work.

• The Department of Building and Housing have advised that it intends for regulations to be enacted to enable the strict liability offences to be enforced by infringement notices. This will enable Building Consent Authorities to deal with most offending at a low level and will

help ensure that only serious breaches are prosecuted. We also note that convictions will not be able to be entered. [2] In light of the above factors, the strict liability offences appear to be a proportionate way of achieving the objectives in the Act.


Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Footnotes:

1. 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.

2. Summary Proceedings Act 1957, s 78A

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 Building Amendment Bill (No 3). 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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