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Regulatory Reform Bill (Consistent) (Section 14) [2010] NZBORARp 98 (14 December 2010)

Last Updated: 27 May 2020

Regulatory Reform Bill

14 December 2010

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: REGULATORY REFORM BILL

1. We have considered whether the Regulatory Reform Bill (PCO 14532/2.0) (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 at its meeting on Thursday, 16 December 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 of the Bill of Rights Act (freedom of expression). Our analysis is set out below.

PURPOSE OF THE BILL

3. This is an omnibus Bill that seeks to amend various Acts in order to reduce the compliance burden on business. In particular, the proposed amendments remove requirements that are unnecessary, ineffective or excessively costly for business.

NON JUSTICE ITEMS

4. We have considered the proposed amendments to the following pieces of legislation which are intended to be included in the Bill, and advise that they are consistent with the Bill of Rights Act:

• Agricultural Compounds and Veterinary Medicines Act 1997

• Animal Products Act 1999

• Building Act 2004

• Companies Act 1993

• Conservation Act 1987

• Fisheries Act 1983

• Friendly Societies and Credit Unions Act 1982

• Registered Architects Act 2005

• Statistics Act 1975

• Takeovers Act 1993

• Unit Trusts Act 1960

• Wine Act 2003

Freedom of expression

• Section 14 of the Bill of Rights Act provides that:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

• There are several provisions in the Bill which require a person or agency to notify clients if their status as a recognised agency or person is withdrawn or surrendered. We have considered whether these notification requirements raise freedom of expression issues.
  
• Clause 11 of the Bill inserts new Part 3A into the Agricultural Compounds and Veterinary Medicines Act 1997. This Part establishes a regime for recognising agencies, persons and classes of persons to manage or carry out specified functions and activities for the purposes of that Act. New s 44ZE specifies what the Director-General must do to withdraw the recognition of a recognised agency or a recognised person. Sub-section 44ZE(5) provides that, as soon as practicable after the withdrawal of recognition takes effect, the agency or person concerned must take reasonable steps to notify each person who was a client of the agency or person that the recognition has been withdrawn. A similar notification requirement is imposed under new s 44ZF for a recognised agency or person who chooses to surrender recognition.
  

• The proposed amendments to the Animal Products Act 1999 (cl 30) and Wine Act 2003 (cl

126) provide for similar regimes for recognising agencies, persons and classes of persons to manage or carry out specified functions and activities for the purposes of those Acts. Both regimes include the requirement of recognised agencies or persons to notify clients that their recognition has been withdrawn or surrendered (see new ss 112L and 112Q of the Animal Products Act and new ss 82P and 82Q of the Wine Act).

• The notification requirements could be seen as a form of compelled expression. The Courts

in Canada and the United States have held that freedom of expression necessarily entails the right to say nothing or the right not to say certain things. [1] Nevertheless, we consider that the notification requirements in the Bill are consistent with the right to freedom of expression. While acknowledging the minor differences between s 14 of the Bill of Rights

Act and s 2(b) of the Canadian Charter, we note the decision of the Supreme Court of

Canada in Irwin Toy Ltd v Attorney-General (Quebec) [2] that “expression” is any activity that

conveys a meaning or attempts to convey a meaning.

• In this case, the information that must be provided to the clients of the recognised person or agency does not appear to be sufficiently "expressive" in content to attract the protection of s 14 of the Bill of Rights Act. It does not compel any agency or person to state an opinion or say something that the person or agency does not believe to be true. Information about the withdrawal or surrender of recognition does not suggest, for example, that the agency or person is engaging in ‘dangerous or unlawful conduct’. Rather, the information can be described as factual and descriptive in nature.
  
• In reaching this view, we have taken into account the fact that the right to freedom of expression includes the right to receive information. The requirement to provide the required information should be balanced against the client’s right to receive accurate factual information about the status of persons with whom they are dealing.

JUSTICE ITEMS

• The Crown Law Office has considered the proposed amendments to the Films, Videos, and Publications Classification Act 1993, and advises that there are no inconsistencies with the Bill of Rights Act arising from the proposed amendments.

CONCLUSION

• 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

Footnotes:

1. Slaight Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705 (1977)

2. [1989] 1 SCR 927

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 Regulatory Reform 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.