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Building Amendment Bill (No 4) (Consistent) (Sections 18, 25(c)) [2011] NZBORARp 29 (15 August 2011)

Last Updated: 29 April 2019

Building Amendment Bill (No 4)

15 August 2011 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

BUILDING AMENDMENT BILL (NO 4)


  1. We have considered whether the Building Amendment Bill (No 4) (PCO 14904/10.0) (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 on Thursday 18 August 2011.
  2. The Bill amends the Building Act 2004 (the Act). The purpose of the Bill is to provide incentives for building professionals and trades people to take responsibility for the quality of their work and to stand behind it. The Bill implements Government policy coming out of the 2009 Building Act Review to:

POSSIBLE INCONSISTENCIES WITH THE BILL OF RIGHTS ACT

Section 25(c) - Presumption of Innocence

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.

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 the intention of the accused to commit the act in question. In addition, a statutory defence requires a defendant to prove on the balance of probabilities a defence to escape liability. In most other criminal proceedings, an accused must merely raise a defence in an effort to create reasonable doubt. In addition, when 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.

The Bill contains the following offence provisions, which may engage s 25(c) of the Bill of Rights Act:


  1. Clause 13 will increase the penalty in s 40(3) of the Act for the offence of doing building work without a building consent from $100,000 to $200,000.
  1. Clause 26 inserts new section 128A(1) that makes it an offence punishable by a fine not exceeding

$200,000 for failing to comply with a notice requiring work to be carried out on a building.

  1. Clause 26 inserts new section 128A(2) that makes it an offence for a person to fail to comply with s 128(2) (prohibitions on the use and occupation of dangerous, affected, earthquake-prone and insanitary buildings). The offence is punishable by a fine not exceeding $200,000, and in the case of a continuing offence, to a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.
  1. Clause 44 inserts new section 362S that creates an offence for a commercial on-seller to complete a sale of a household unit or allow a purchaser of a household unit to enter into possession of the household unit before a consent completion certificate is issued. The offence is punishable by a fine not exceeding $200,000.

Section 388(1) of the Act makes the above provisions of the Bill strict liability offences. It also is a defence in any prosecution that is referred to in s 388(1) if the defendant proves:


(a) that all of the following circumstances apply:

(b) that the action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case:

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

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?

In addition to the matters outlined in paragraph 7, we consider the following factors are relevant in assessing whether the strict liability offence can be justified under s 5 of the Bill of Rights Act:

The Department of Building and Housing has advised that it is crucial to have an effective enforcement regime because of the potentially hazardous outcomes, and the danger posed to the health and safety of the public if the building code is not complied with. Accordingly, the objective of the strict liability offences is to increase the likelihood of successful enforcement action to promote the objectives of the Act.

To achieve these objectives the strict liability offences seek to deter participants from circumventing the building standards and health and safety requirements in the Act.

Clause 13 deters people from doing building work without a building consent. The Bill increases the fine from $100,000 to $200,000 to make it consistent with other similar provisions in the Act.

Similarly, new section 128A(1) deters non-compliance with notices issued by a territorial local authority requiring work to be carried out on a building.

New section 128A(2) deters people from entering or remaining in a dangerous, earthquake-prone, affected or insanitary building.

Clause 44 seeks to prevent a commercial on-seller from completing a sale of a household unit or allowing a purchaser of a household unit to enter into possession of the household unit before a consent completion certificate is issued. The purpose of the provision is to ensure that purchasers of buildings do not enter into buildings that they are unaware are unsafe.

The nature of the offences in question can be described as public welfare regulatory offences rather than truly criminal in nature. In each case, the accused is likely to be in a strong position to provide reasonable excuse for failing to comply with the provisions identified above (for example, why they entered a prohibited area, failed to respond to a notice to carry out work, or failed to comply with a compliance notice). In cases where a person is unaware of the notice they may also rely on the common law defence of complete absence of fault. [2]

The penalties are designed to reflect the risk to public and personal health and safety when the Building Act is not complied with. The penalties are also consistent with other maximum penalties for serious offences in the Act. We therefore conclude that the penalties for these offences are appropriate and proportionate.

The Department of Building and Housing advise that it intends for regulations to be enacted to enable the strict liability offences to be enforced by infringement notices. This will enable territorial local authorities to deal with minor breaches at a low level and will help ensure that only serious breaches are prosecuted.

We therefore consider that the above strict liability offences and statutory defences are justifiable in terms of s 5 of the Bill of Rights Act.

Section 18 - Freedom of Movement

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.

Clause 21 inserts new section 124(2)(d) that will create a power for territorial local authorities to issue a notice restricting entry into a dangerous, earthquake-prone, affected or insanitary building for particular purposes or persons or groups of persons. This provision may limit the freedom of movement of people who would otherwise be able to enter these buildings.

The purpose of the notice is to safeguard public and personal health and safety by preventing entry to a dangerous, earthquake-prone, affected or insanitary building. The notice may only be issued when a building is classified by a territorial local authority as dangerous, earthquake-prone, affected or insanitary. Therefore, we consider that this power is proportional to the limit it places on the right to freedom of movement.


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. Hansen v R [2007] NZSC 7.
  2. See Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) at 85; Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 665; Cooke v Auckland Transport (Formerly Auckland City Council) HC AK CRI-2010-404-454 at 25.

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 4). 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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