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Smart Meters (Consumer Choice) Bill (Consistent) (Section 14) [2010] NZBORARp 9 (17 March 2010)

Last Updated: 7 May 2019

Smart Meters (Consumer Choice) Bill

17 March 2010 ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

SMART METERS (CONSUMER CHOICE) BILL

1. We have considered the Smart Meters (Consumer Choice) Bill (‘the Bill’), a Member’s

Bill in the name of David Clendon 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 23 February 2010 and is currently awaiting its first reading. It is our understanding that the next Members’ Day has been re-scheduled for today, 17 March 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 of the Bill with s 14 (freedom of expression) of the Bill of Rights Act. Our analysis is set out below.
   

Purpose of the Bill

3. The Bill amends the Electricity Act 1992. The purpose of the Bill is to empower domestic consumers to better manage their electricity use. To this end, the Bill requires providers of smart meters to inform domestic consumers of their options when installing or upgrading smart meters and sets minimum requirements for the provision of smart meters.
   

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. We note, taking into account the various domestic and overseas judicial pronouncements on the issue, a two-step inquiry has been adopted 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]
   

Clause 6 – new section 35B(3)

6. Clause 6 of the Bill inserts new section 35B (Domestic consumer information disclosure) into the Electricity Act 1992. New s 35B(1) requires industry participants to offer consumers living in domestic premises: an in-home display; a smart meter

capable of measuring separately both import and export of electricity; a choice between certain types of smart meters; and a choice of tariffs. New s 35B(3) places obligations on these industry participants to inform consumers about the related costs and benefits of choosing or not choosing a particular feature.

7. To determine whether the right to the freedom of expression has been infringed, the communication in question must attempt to express an idea or meaning. [3] We have considered whether this component is satisfied in relation to the information that must be disclosed under new s 35B(3), and have concluded that because the information is of a factual nature, it is not sufficiently expressive to engage s 14 of the Bill of Rights Act. For completeness, we have considered whether, if the provision places a limit on the freedom of expression, it is justifiable in terms of s 5 of the Bill of Rights Act. New s 35B(3) pursues the important objective of ensuring that consumers can make an informed choice regarding the specific features of a smart meter to be installed or upgraded. There is a rational and proportionate connection between the requirement in new s 35B(3) and this objective. We have, therefore, concluded that if this new s 35B(3) is considered to pose a limit on s 14 of the Bill of Rights Act, it appears to be justified under s 5 of that Act.
   

Conclusion

8. 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. Ross v New Brunswick School District No 15 [1996] 1 SCR 825. 3. 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 Smart Meters (Consumer Choice) 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.