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Taxation (Livestock Valuation, Assets Expenditure, and Remedial Matters) Bill (Consistent) (Section 21 ) [2012] NZBORARp 44 (24 August 2012)

Last Updated: 28 April 2019

Taxation (Livestock Valuation, Assets Expenditure, and Remedial Matters) Bill

24 August 2012 ATTORNEY-GENERAL

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990:

Taxation (Livestock Valuation, Assets Expenditure, and Remedial Matters) Bill

1. We have considered whether the Taxation (Livestock Valuation, Assets

Expenditure, and Remedial Matters) Bill (IRD 16579/2.0) (‘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 at its meeting on Thursday, 30 August 2012.

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 that conclusion, we have considered the consistency of the Bill with s 21 (unreasonable search and seizure of the Bill of Rights Act 1990. Our analysis under that section is set out below.
   

The Bill

3. The Bill amends the Income Tax Act 2007, the Tax Administration Act 1994, the Goods and Services Tax Act 1985, the KiwiSaver Act 2006, the Student Loan Scheme Act 2011, the Stamp and Cheque Duties Act 1971, the Income Tax Act 2004, the Social Security Act 1964 and related regulations. The Bill also amends the schedule to the Search and Surveillance Act 2012.
   
4. The amendments include livestock valuation, apportionment of expenditure related to the use of certain assets, eliminating tax treatment mismatches for certain foreign currency hedges, reducing the time period for claiming tax refunds, treatment of expenditure for commercial fit-outs, tax concessions for non-resident companies, donee status, and GST and KiwiSaver issues.
   

Consistency with Section 21 (Unreasonable Search and Seizure)

5. Section 21 of the Bill of Rights Act affirms the right of everyone to be free from unreasonable search and seizure. The Bill could engage s 21 because cl 110 amends the schedule to the Search and Surveillance Act to exclude the application of ss 102, 103(3)(b)(ii), 103(7) and 115(1)(b) of that Act to the powers exercised under ss 16 and 16C of the Tax Administration Act (‘TAA’).

6. Section 16 of the TAA empowers the Commissioner of Inland Revenue or an authorised person to enter a premises in order to obtain information. Section 16C of the TAA empowers the Commissioner or authorised person to remove and retain documents for inspection. The relevant sections of the Search and Surveillance Act relate to self-incrimination and privileged information.
   

Self-incrimination

7. Section 103(3)(b)(ii) of the Search and Surveillance Act states that a judicial officer may make a search warrant issued subject to a condition that the occupier or person in charge of a place must provide reasonable assistance to a person executing the warrant if, in the absence of such assistance, it would not be practical to execute the warrant without undue delay. Section 103(7) clarifies that such a condition does not require a person to give any information tending to incriminate that person.
   
8. In excluding the application of s 103(7), the Bill could appear remove the protection against self-incrimination provided by that section. However, s 103(7) only applies in respect of the obligation imposed under s 103(3)(b)(ii), the application of which is also excluded by cl 110. We have therefore concluded that cl 110 of the Bill does not make any change to protection against self-incrimination in respect of a search or seizure under the TAA and does not appear to alter the reasonableness of such a search or seizure.
   

Privileged information

9. Section 102 of the Search and Surveillance Act prevents a judicial officer from issuing a warrant to seize items subject to legal professional privilege (unless it has been prepared for a dishonest or criminal purpose). Section 115 of that Act makes warrants subject to subpart 5 of part 4 (privilege and confidentiality).
   
10. We have considered whether removing impediments to the issuing of warrants covering materials subject to privilege could alter the reasonableness of a search or seizure under the TAA. We note that ss 20 to 20G of that Act contain alternative provisions dealing with the seizure of privileged material. We have therefore concluded that the exclusion of ss 102 and 115 of the Search and Surveillance Act does not appear to alter the reasonableness of a search or seizure under the TAA.
    

Conclusion

11. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed by the Bill of Rights Act.
    

Melanie Webb

Acting Chief Legal Counsel Office of Legal Counsel

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 Taxation (Livestock Valuatio, Assets Expenditure, and remedial Matters) 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.