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Canterbury Earthquake Recovery Bill (Consistent) (Sections 18(1), 21, 25(c), 27(1), 27(2)) [2011] NZBORARp 14 (12 April 2011)

Last Updated: 29 April 2019

Canterbury Earthquake Recovery Bill

12 April 2011 ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

CANTERBURY EARTHQUAKE RECOVERY BILL

1. On 6 April 2011 and 8 April 2011, we provided you with preliminary advice about the consistency of the Canterbury Earthquake Recovery Bill (the Bill) with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). This advice consolidates our previous advice as we have now received a revised version of the Bill (PCO15060/6.6) and have considered whether it is consistent with that Act.
2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching this conclusion, we have considered the consistency of the Bill with ss 18(1) (freedom of movement), 21 (unreasonable search and seizure), 25(c) (presumption of innocence), 27(1) (the right to natural justice), and 27(2) (right to judicial review) of the Bill of Rights Act. Our analysis under those sections is set out below.
   

PURPOSE OF THE BILL

3. The purpose of the Bill is to enable greater Christchurch and its communities to respond to, and recover from, the impacts of the Canterbury earthquakes. The Bill will facilitate the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of infrastructure and other property. The Bill will also repeal the Canterbury Earthquake Response and Recovery Act 2010.
4. The Bill seeks to establish the Canterbury Earthquake Recovery Agency (CERA), a new public service department, to coordinate recovery efforts. The Bill provides for the development of a Recovery Strategy and Recovery Plans. It confers on the Minister and the new department the powers necessary for the recovery effort, including information gathering, carrying out of building works and requiring surveys, as well as the ability to acquire land. The Bill specifies a process for determining compensation for the taking of land and demolition of buildings, and a process for appeals of specified decisions under the Bill. The Bill also empowers the Governor-General to make Orders in Council that grant exemptions from, modify, or extend any provisions of any Act for a purpose of the Bill (except for specified Bills of constitutional importance).

POSSIBLE INCONSISTENCIES WITH THE BILL OF RIGHTS ACT

Section 18 – Right to Freedom of Movement

5. Section 18(1) of the Bill of Rights Act affirms that everyone lawfully in New Zealand has the right to freedom of movement and residence within New Zealand.
6. Clause 45 (Access to areas or buildings) of the Bill empowers the Chief Executive of CERA to restrict or prohibit access to any specified area, or to any specified building, within greater Christchurch. Clause 46 (Closing and stopping roads, etc) of the Bill empowers the Chief Executive to prohibit or restrict public access, with or without vehicles, to any road or public place within greater Christchurch. These provisions appear to limit the freedom of movement of people who would otherwise be able to enter these areas.
7. Where a provision is found to pose 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 demonstrably justified in terms of s 5 of that Act. Following the guidance of the New Zealand Supreme Court decision in Hansen v R, [1] the s 5 inquiry may be summarised as:
   
   1. does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?
   2. if so, then:
      
      1. is the limit rationally connected with the objective?
      2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
      3. is the limit in due proportion to the importance of the objective?
         
8. The purpose of the restrictions in cls 45 and 46 is to facilitate the practical aspects of the recovery and, in particular, to ensure the safety of individuals. From time to time, it may be necessary to prevent access to areas so that work can be carried out or because those areas are hazardous. This purpose is sufficiently important to justify some kind of limitation on the right. There is a rational connection between restricting access to areas, buildings, public places, and roads and protecting the public from the hazards resulting from earthquake damage.
9. In assessing whether the limitation impairs the right no more than is reasonably necessary and is proportionately connected to the purpose, it is important to consider the scope of the power conferred on the Minister and the Chief Executive by cl 10 (Powers to be exercised for purposes of this Act) of the Bill. Clause 10 permits the Minister and the Chief Executive to exercise their powers under the Bill only in accordance with the purpose of the Bill and where they reasonably consider it necessary. For this reason, we are satisfied that the Chief Executive would only be able to prevent access to a specified area or building where it is reasonably necessary to achieve the purpose outlined above. Clauses 45 and 46 of the Bill, therefore, appear to be consistent with the Bill of Rights Act.

Section 21 – Right to be Secure Against Unreasonable Search and Seizure

10. Section 21 of the Bill of Rights Act affirms the right of everyone to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise. There are two limbs to the s 21 right. First, s 21 is applicable only in respect of those activities that constitute a ‘search or seizure’. Secondly, where certain actions do constitute a search or seizure, s 21 protects only against those searches or seizures that are “unreasonable” in the circumstances. A request for information or documents constitutes a search for the purposes of s 21 of the Bill of Rights Act. [2]
11. The Court of Appeal has said that the main aim of s 21 is to protect privacy interests: “It is only where a person's reasonable expectations of privacy have been breached that a personal remedy under the Bill of Rights ... is available. The reasonable expectation of privacy enjoyed by a person is to be judged largely objectively. A

broad view of privacy interests should be taken ...” [3]

12. Clause 29 (Requiring information to be given) of the Bill empowers the Chief Executive to require any person to provide information that is in the possession of that person, if the information is capable of being provided without unreasonable difficulty or expense. Depending on the type and form of the information required, the exercise of this power might amount to a seizure for the purposes of s 21 of the Bill of Rights Act.
13. In assessing the reasonableness of a seizure under cl 29, we note that the seizure of the information in question must be for a purpose under the Bill. The ability to require certain information appears to be necessary to inform decisions about the Christchurch recovery and how to deal with similar events in the future. For example, information collected about the construction materials used in some buildings can be used to inform the future design of buildings to withstand earthquakes. The information in question is likely to be technical in nature and therefore the privacy interest is low.
14. We also interpret the requirement that the information must be able to be provided “without reasonable difficulty” in the context of s 21 of the Bill of Rights Act and what is reasonable under that Act. The scope of the power in cl 29 is defined, in part, by s 21 of the Bill of Rights Act and we consider that this power is consistent with that Act.
15. Clause 33 (Authorised person may enter premises) empowers the Chief Executive or an authorised person to enter on, and if necessary break into, any premises or place within greater Christchurch, if he or she believes on reasonable grounds that the action is necessary for the purpose of:
    
16. a) inspecting the premises or place
    2. permitting or facilitating the carrying out of any work or measure under the Bill
    100. exercising or performing any function, responsibility, duty, or power under the Bill.

17. Examples of entry for a purpose under the Bill can be found in cls 38 (Works) and 39 (Provisions relating to demolition or other works) of the Bill, which empower the Chief Executive to carry out works on public or private land.
18. The power of entry and seizure is closely linked to the purposes of the Bill to assist in the recovery of greater Christchurch. As discussed above, where the Bill does not specify that something must be done for a purpose of the Act, we read this in by virtue of cl 10 of the Bill. It is apparent that it will be necessary to enter into private property as part of the recovery effort and to carry out certain functions under the Bill (such as to carry out building work or deal with a hazard).
19. We also note that there are safeguards which contribute to the reasonableness of the provision, namely the Chief Executive or authorised person must:
    
    1. not take personal effects (samples and other objects can be taken)
    2. leave a notice of the items taken on the premises or at the place entered
    100. produce evidence of the authorisation if requested to do so, and leave a notice of entry in a prominent place
    4. if practicable, enter the premises or place at a reasonable time and give prior notice of entry.
       
20. It is also important to note that the powers in cl 33 do not relate to criminal investigations but are related to public welfare. For this reason, we consider that it would not be necessary to obtain a warrant for entry in respect of commercial premises where the entry is reasonable and complies with other safeguards set out in the Act.
21. In the case of a marae or dwellinghouse, cl 33(2) of the Bill requires the Chief Executive to obtain a warrant issued by a District Court Judge (although this would not prevent entry without a warrant where there is consent). There are two exceptions. First, a warrant would only be required in respect of a dwellinghouse that it is occupied. Secondly, a warrant would not be required where it would be impractical to obtain a warrant. Given the unique circumstances of the Canterbury earthquake, we consider that these exceptions are reasonable. For example, there may be circumstances in which it is difficult to locate the owner or where work needs to be carried out urgently, such as preventing masonry from harming the public or causing damage to neighbouring properties.
    

Section 25(c) – Presumption of Innocence

22. 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.
23. Strict liability offences give rise to a limit on s 25(c) of the Bill of Rights Act because the prosecution is not required to prove that the accused intended to commit the offence. The prosecution must only prove that the accused committed the act in question. The accused is then 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.

24. The Bill contains the following offence provisions, which may engage s 25(c) of the Bill of Rights Act:
    
    1. Clause 42 (Offences relating to works) makes it an offence to fail to comply with a notice to carry out work under cls 38(4) or 39(2)(c), punishable by a fine not exceeding $200,000.
       
    2. Clause 47 (Offences relating to roads) makes it an offence to contravene a restriction or prohibition imposed under cl 46 (which relates to closing and stopping of roads). The offence is punishable by a term of imprisonment not exceeding three months or a fine not exceeding $5,000 for an individual, or a fine not exceeding

$50,000 for a body corporate.

100. Clause 80 (Offence for breaching a compliance order) makes it an offence to, without reasonable excuse, breach or fail to comply with the terms of a compliance order issued by the Chief Executive. The offence is punishable by a term of imprisonment not exceeding three months or a fine not exceeding $1000.
     

25. While it is possible that a court will infer a mental element for these offences, we have, for the sake of completeness, considered whether these offences are consistent with s 25(c) of the Bill of Rights Act.
26. In addition to the guidance provided by the Supreme Court in Hansen v R set out above, we consider the following factors are relevant in assessing whether such offences can be justified:
    
    1. the nature and context of the conduct to be regulated
    2. the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person
    100. the penalty level.
         
27. The nature of the offences in question can be described as public welfare regulatory offences rather than truly criminal in nature. Bearing in mind the significant and important objectives of the Bill to reduce harm to the public and property posed by hazardous roads, places, buildings, and structures, it is essential to have an effective enforcement regime in place. Accordingly, the objective of these offences is to increase the likelihood of successful enforcement action to promote the objectives of the Bill.
28. We also note that in each case, the accused is likely to be in a strong position to provide a reasonable excuse for failing to comply with the provision in question (for example, why they entered an area where a road was closed, failed to respond to a notice to carry out work, or failed to comply with a compliance notice). The penalty levels seem appropriate and proportionate for these offences. On balance, we consider that the offence provisions set out in the Bill appear to be consistent with s 25(c) of the Bill of Rights Act.

Section 27(1) – Right to Natural Justice

29. As discussed above, cl 38 (Works) of the Bill authorises the Chief Executive to carry out works on public or privately owned land. Clause 39(2)(c) (Provisions relating to demolition or other works) of the Bill empowers the Chief Executive to require the owner to leave the property, with one month notice, so that the work can be carried out under cl 28. Clause 39(7) provides that there is no right of appeal or objection to the notice to vacate the property. We have considered whether this provision could limit the right to natural justice affirmed in s 27(1) of the Bill of Rights Act.
30. The decision to give notice under cl 39(2)(c) must follow a decision to carry out work. In our view, although the decision to carry out the work does not require the consent of the land owner, in reaching the decision, the Chief Executive would be required to comply with the right to natural justice. This decision would be subject to review in the normal way. The notice given under cl 39(2)(c) is therefore only part of a process where, in the absence of anything to the contrary, natural justice rights apply. Clause 39, therefore, appears to be consistent with s 27(1) of the Bill of Rights Act.
    

Section 27(2) - Right to Judicial Review

31. Section 27(2) of the Bill of Rights Act affirms that every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
32. Clause 70 (Governor-General may make Orders in Council for purpose of Act) of the Bill empowers the Governor-General to make Orders in Council on the recommendation of the relevant Minister. Orders in Council may grant exemptions from, modify, or extend any provisions of any enactment for a purpose of the Bill. Clause 73(2) (Procedure for recommending Order in Council) of the Bill states that the recommendation of the relevant Minister may not be challenged, reviewed, quashed, or called into question in any Court.
33. In our view, a recommendation made by the Minister under cl 70 of the Bill is not a determination for the purposes of s 27(2) of the Bill of Rights Act because the

determination is not made in respect of a particular person’s rights, obligations, or interests protected or recognised by law. Section 27(2) does not create a right to challenge Government policy decisions that have general application, such as recommendations to make Orders in Council. [4] It is important to note that cl 73(2) only protects recommendations of the Minister to the Governor-General. It does not apply to determinations made under those Orders in Council in respect of particular cases, which would be subject to judicial review, nor does it protect the Orders in Council themselves if they are ultra vires. We discuss the general consistency of Orders in Council with the Bill of Rights Act below.

General Consistency of Orders in Council with the Bill of Rights Act

34. Clause 70(5)(c) (Governor-General may make Orders in Council for purpose of Act) of the Bill states that an Order in Council promulgated under the Bill may not grant an

exemption from, or modify a requirement or restriction imposed by the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, or the Bill of Rights Act. Clause 74(2)(a) (Further provisions about Orders in Council) provides that an Order in Council may not be held invalid just because it is, or authorises any act or omission that is, inconsistent with any other Act.

35. We have considered whether the Bill prevents modification to the Bill of Rights Act (under cl 70(5)(c)) but nevertheless authorises Orders in Council that modify other Acts in a way that is inconsistent with the Bill of Rights Act. In our view, such an interpretation would defeat the clear intention of the Bill that Acts of constitutional importance (such as the Bill of Rights Act) must not be subject to derogation. In our view, clauses 70(5)(c) and 74(2)(a) must be read together. The Bill, therefore, does not prevent a Court from finding that Orders in Council are ultra vires on the grounds that the Bill does not authorise delegated legislation that is inconsistent with the Bill of Rights Act. [5]
    

CONCLUSION

36. 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. Hansen v R [2007] NZSC 7.
2. New Zealand Stock Exchange v Commissioner of Inland Revenue [1992] 3 NZLR 1 (PC).

3. R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA) at [48] and [236].

4. See, for example: Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347 (HC), and Graham v Hawkes Bay Power Distributions Ltd (High Court, Napier, CP 33/95, 25 September 2000, M Thomson).
5. Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58.
   

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 Canterbury Earthquake Recovery 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.