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Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Bill (Consistent) (Sections 14, 19(1)) [2013] NZBORARp 11 (16 April 2013)

Last Updated: 1 April 2019

Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Bill

Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Bill 16 April 2013

Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Bill

1. We have considered whether the Taxation (Annual Rates, Foreign Superannuation, and

Remedial Matters) Bill (IRD 17420/1.3) (‘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, 18 April 2013.

2. We have concluded that the Bill, as it is currently drafted, 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 s 19 (1) (Freedom from Discrimination) and s 14 (Freedom of Expression) of that Act.
   

Purpose of the Bill

3. The Bill amends the Income Tax Act 2007, the Tax Administration Act 1994, the KiwiSaver Act 2006, the Income Tax Act 2004, the Income Tax Act 1994 and the Health Entitlement Cards Regulations 1993. The main amendments include:
   
   • new rules for withdrawals from foreign superannuation schemes,
   • the replacement of tax rules related to the mining of specified minerals,
   • changes to the provisions in Part M of the Income Tax Act 2007 relating to Working for Families tax credits,
   • technical remedial changes to the taxation rules as they apply to general and life insurance business,
   • changes to the rules of imputation credits and Australian dividends and new rules regarding bad debt deductions for holders of debt.
     

Consistency with s 19(1) (Freedom from Discrimination)

4. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to be free from discrimination on the prohibited grounds of discrimination set out in the Human Rights Act 1993, including national origin and family status.
   
5. New rules for withdrawals from foreign superannuation schemes affect, in particular, New Zealand residents who are new migrants, returning New Zealanders who have spent a number of years working overseas, and New Zealand residents who have acquired an

interest in a foreign superannuation scheme by other means.

6. The new rules could be seen to draw a distinction on the basis of national origin. However, the changes target individuals with an interest in foreign superannuation schemes and those individuals are not in a comparable position with individuals who qualify for New Zealand superannuation only. Also, the distinctions do not appear to give rise to a disadvantage for groups of a different national origin. Therefore they do not limit s 19 (1) of the Bill of Rights Act.
   
7. The Bill also makes minor technical amendments to provisions in the Income Tax Act 2007 relating to Working for Families tax credits. We have noted in previous advice that the Working for Families tax credit raises some distinctions based on family status but we considered that the distinctions were a reasonable limit on section 19(1). The proposed amendments do not change our previous view.
   

Consistency with s 14 (Freedom of Expression)

8. The Bill contains provisions regarding reporting requirements that could engage s 14 (Freedom of Expression) of the Bill of Rights Act. However, these limits are clearly justified under s 5 of that Act.
   

Conclusion

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

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Disclaimer

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 Plumbers, Gasfitters, and Drainlayers 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.