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Housing Restructuring and Tenancy Matters (Social Housing Reform) Amendment Bill (Consistent) (Sections 14, 19(1), 21, 25(c)) [2013] NZBORARp 16 (9 May 2013)

Last Updated: 1 April 2019


9 May 2013 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: HOUSING RESTRUCTURING AND TENANCY MATTERS (SOCIAL HOUSING REFORM) AMENDMENT BILL

  1. We have considered whether the Housing Restructuring and Tenancy Matters (Social Housing Reform) Amendment Bill (PCO 15290/2.4) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill will be considered by Cabinet on Monday, 13 May 2013.
  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 possible inconsistencies with ss 19(1) (freedom from discrimination), 21 (right to be secure against unreasonable search and seizure), 14 (freedom of expression) and 25(c) (right to be presumed innocent). Our analysis under those sections is set out below.

SUMMARY OF ADVICE

  1. We do not consider that the income related rent calculation provided for in new s

9.46 involves unlawful discrimination under s 19 of the Bill of Rights Act. Many of the groups charged different rents through the calculation required in s 9.46 are not in comparable situations and even where they are any different treatment is unlikely to result in material disadvantage. In so far as income related rent may be calculated with reference to benefit levels under the Social Security Act 1964 that may be discriminatory, those levels are used simply as a reference point for a person’s ability to pay, and the provision of social housing may require the Government to draw broad distinctions between groups and make certain assumptions about the characteristics of groups in order to effectively direct resources to where they are most needed.

  1. We do not consider the significant search powers provided for under the Bill are inconsistent with ss 14 or 21 of the Bill of Rights Act. The powers are necessary to ensure that social housing continues to be allocated to those who most need it and to facilitate the proper allocation of housing amongst HNZ tenants, and although the Bill does not contain safeguards specifically directed at protecting the right to not be compelled to incriminate oneself, there are appropriate safeguards to protect individual privacy.
  2. Finally we consider that that any apparent limit on s 25(c) of the Bill of Rights Act raised by reverse onus provisions in new offences is justified under s 5 of that Act.

THE BILL

  1. We understand that the Bill has not yet been finalised and may be subject to change before and after it is submitted to Cabinet. We will provide supplementary advice should this prove necessary.
  2. The Bill provides a framework for the future provision of social housing by increasing the number of social housing providers. The Bill:

CONSISTENCY WITH THE BILL OF RIGHTS ACT

Section 19(1) – Freedom from Discrimination

  1. Section 19(1) of the Bill of Rights Act affirms the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. These grounds include, amongst others, age, marital status, family status and employment status.
  2. In assessing whether there is a limit on the right to freedom from discrimination we consider whether:1
    1. the legislation draws a distinction between persons or groups in analogous or comparable situations on one of the prohibited grounds of discrimination, and
    2. the distinction involves material disadvantage to one or more classes of individuals.
  3. Where a provision is found to limit 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 justifiable in terms of s 5 of that Act. Following the guidance in Hansen v R, the s 5 inquiry may be summarised as:2
    1. does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?

1 Minister of Health v Atkinson & Ors [2012] NZCA 184.

2 [2007] NZSC 7.

  1. 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?

Previous Attorney-General’s advice on income related rents


  1. New Part 9 of the Bill provides for the calculation of income-related rents. New Part 9 is substantially similar to current Part 5 of the Housing Restructuring and Tenancy Matters Act 1992 (it is being re-enacted in a new Part so that an agency other than Housing New Zealand can assume responsibility for calculating income related rent). Part 5 of that Act was inserted by the Housing Restructuring (Income-Related Rents) Amendment Act 2000. Part 5 (as introduced) was considered to be inconsistent with the Bill of Rights Act because it appeared to discriminate on the basis of marital status and family status in a way that was not justifiable under s 5 of that Act.3
  2. Given that some changes were evidently made to key aspects of Part 5 following the previous Attorney-General’s advice, and in light of refinements in the approach to discrimination under s 19 of the Bill of Rights Act in recent case law, we consider it appropriate to assess the affect of new Part 9 anew, rather than simply relying on the previous Attorney-General’s consideration.

Income-related rents

  1. The income related rent scheme is designed to provide that tenants pay income related rent rather than market rent for a property.
  2. New s 9.46 requires income related rent for those receiving social housing to be calculated either by reference to household income (s 9.46(2)) or benefit levels (s 9.46(3)), whichever is higher. We note however that under new ss 7.43(5) and 8.43(5) Housing New Zealand Corporation may, in its absolute discretion, set and accept from a tenant rent lower than that calculated under new s 9.46.
  3. We understand that the rationale behind providing for rent calculated with reference to what a tenant would receive “if the tenant were a beneficiary” (s 9.46(3)) is to prevent a situation where a tenant could game the system. For example, a self-employed person could appear to have a very low income and claim a reduced rent based on their income, rather than the benefit they would be entitled to if they were a beneficiary. The benefit calculation provided for in new s 9.46(3) would therefore result in the minimum income related rent that can ever be payable, and only arises where a person’s income is below benefit rates.
  4. Schedule 9 of the Social Security Act 1964 sets out the benefit level for various persons and draws distinctions based on age, as well as marital and family

3 http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestic-human- rights-protection/about-the-new-zealand-bill-of-rights-act/advising-the-attorney-general/section-7- reports-published-before-august-2002/Housing-Restructuring-Income-Related-Rents.pdf

status. Calculations under both s 9.46(2) and 9.46(3) also engage the “prescribed proportions” set out in current Schedule 2 of the Act, which contain distinctions based on marital and family status.

  1. The rationale for income-related rents appears to be that recipients of social housing are charged rent based on their ability to pay, either by reference to their actual income or the benefit they would be entitled to if they were a beneficiary. While the benefit levels referred to under new s 9.46(3) draw distinctions based on age as well as marital and family status, the effect of income-related rents in the Bill cannot be said to be discriminatory. Where a person’s rent is calculated by reference to the benefit they would receive if they were a beneficiary, the rent they are required to pay is based on an assessment of their financial position and ultimately their ability to pay. The income-related rent calculation under new s 9.46(3) does not import the potentially discriminatory criteria set out in the Social Security Act 1964, instead it uses the benefit level (for a person with no, or very little income) that the person would be entitled to as the reference point for judging that person’s ability to pay.
  2. Even if the reference to benefit levels could be considered to import the potentially discriminatory criteria set out in the Social Security Act 1964, we do not consider there to be discrimination because many of the groups charged different rents are not in comparable situations and even where they are any different treatment is unlikely to result in material disadvantage.
  3. For example, the effect of new s 9.46(3) is that single persons under the age of 25 and single persons over the age of 25 will pay different amounts of rent. Based on figures provided to us by Housing New Zealand Corporation, a single 24 year old would pay $42 rent while a single 25 year old would be required to pay $51 rent. Single 24 and 25 year olds are in comparable circumstances. It is however questionable whether the requirement to pay $9 more than a single 24 year old is a “material disadvantage” for a single 25 year old.
  4. The calculations provided for in new s 9.46 require a distinction between single persons and couples (the definition of “applicable persons” in s 9.42 includes every person who is a spouse or partner of a person who is let housing, and the prescribed proportions set out in Schedule 2 of the Housing Restructuring and Tenancy Matters Act 1992 further differentiate between persons who have a spouse or partner). Based on figures provided to us by Housing New Zealand Corporation, single persons and couples will be charged different amounts of rent (if the rent is calculated with reference to benefit levels under s 9.46(3), a single 25 year old will pay $51 while a 25 year old with a spouse or partner will be required to pay $85).
  5. However, we do not consider couples and single persons to be in comparable circumstances in relation to the calculation of income related rents, and so no question of discrimination within the terms of s 19 arises.
  6. We also note that the provision of social housing may require the Government to draw broad distinctions between groups and make certain assumptions about the characteristics of groups in order to effectively direct resources to where they are most needed. Any concerns about the impact of such distinctions and assumptions on individual circumstances can be ameliorated through Housing

New Zealand Corporation’s discretion under new ss 7.43(5) and 8.43(5) to charge less rent than that required by the calculation under new s 9.46.

Regulations for the purpose of calculation method

  1. Clause 9 of the Bill replaces current ss 53(5) and 53(6) with new s 53(5) which provides that, to avoid doubt, nothing in s 53 affects the application of the Bill of Rights Act.
  2. Section 53 of the Housing Restructuring and Tenancy Matters Act 1992 allows the making of regulations that draw distinctions based on prohibited grounds under the Human Rights Act 1993. Clause 9 makes it clear that the Bill of Rights Act applies to section 53 and that any regulations made under that section must comply with the Bill of Rights Act.

Sections 21 (unreasonable search and seizure) and 14 (freedom of expression)

  1. 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. A request for information or documents constitutes a search for the purposes of s 21 Bill or Rights Act.4
  2. Section 14 of the Bill of Rights affirms the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form. This can also include the right not to express or impart information and opinions.
  3. We consider there to be overlap between ss 21 and 14 when persons are required to provide certain information and have considered these rights together.

Provision of information to HNZ

  1. The Bill adds a series of new sections requiring the provision of information to HNZ (new ss 56, 58, 59 and 59A) which operate alongside new powers for HNZ to review or investigate the eligibility of any tenant to receive HNZ housing, “income related rent” or any “financial product” (new ss 57A - 58AD).
  2. The powers to require information operate alongside offences that relate to failing to provide information when required and providing false or misleading information (new ss 61A – 61C).
  3. The provisions that require the provision of certain information to HNZ appear to limit the right to freedom of expression and may also engage the right to be free from unreasonable search or seizure. Coupling these requirements with offences for non-compliance further compels the provision of information. The information that certain persons are required to provide to HNZ may also include information that has a privacy aspect to it. For example, a HNZ will be required to notify HNZ of a change in his or her relationship status.
  4. Overall, the provisions give HNZ significant powers to search and seize information. When considering whether a search power is unreasonable, we

4 New Zealand Stock Exchange v Commissioner of Inland Revenue [1992] 3 NZLR 1 (PCP).

consider whether the power has a valid state purpose and appropriate safeguards in place.

  1. The purpose of this group of provisions appears to be to ensure HNZ has accurate and up to date information on which eligibility and continued eligibility for HNZ housing is based. In light of this purpose, the requirements to provide certain information to HNZ are necessary in order to ensure that social housing continues to be allocated to those who most need it and to facilitate the proper allocation of housing amongst HNZ tenants.
  2. In terms of safeguards, new s 59A(2) provides that HNZ may only require information under s 59A(1) in accordance with a code of conduct. New ss 65A and 65B set out who the code of conduct applies to and what must be contained in the code of conduct.
  3. The general affect of new ss 65A and 65B is that a code of conduct must be established to require that HNZ exercises its powers to require information in a way that protects individual privacy. For example, there is a requirement to consult with the Privacy Commissioner about the content of the code of conduct.
  4. 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 should be taken...”5
  5. Given the privacy protections offered by the code of conduct, it is unlikely that HNZ will be able to exercise its powers in circumstances that would amount to an unreasonable search or seizure. Also, the powers available to HNZ are necessary in order for it to effectively manage the provision of social housing and to ensure that such housing is only available to those who are eligible under the social housing scheme.
  6. We also note that individuals have a right of appeal from decisions ultimately made by HNZ (new s 62 which may be based on information provided).

Self-incrimination

  1. There is the potential for a tenant of HNZ to be required to provide information that may incriminate themselves in circumstances where failing or refusing to do so is an offence (s 59A(1)(f) and (h), and s 61B).
  2. Sections 23(4) and 25(d) of the Bill of Rights Act incorporate a limited right to silence and a privilege against self-incrimination. However, the rights contained in these provisions are not as broad as those protected at common law. Whilst the common law protects a right to silence of all persons at the investigation and pre-trial stages, the right to silence in s 23(4) is afforded only to persons who are arrested or detained under an enactment. Section 24 of the Bill of Rights Act, which deals with rights of persons charged, does not incorporate any right to silence.

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

  1. We therefore conclude that the Bill of Rights Act does not provide a protection against self-incrimination at the investigation and pre-trial stage.
  2. Section 60 of the Evidence Act 2006 provides that a person cannot be prosecuted or penalised for refusing or failing to provide self-incriminating information unless an enactment removes the privilege against self-incrimination either expressly or by necessary implication. It is arguable that the reference to “any person” in new s 59A(1) implies that anyone, including the person suspected of committing an offence under s 61C, can be required to provide self incriminating information.
  3. The possibility that suspects may be required to provide self-incriminating information may impact on the reasonableness of the search and seizure powers under the Bill.
  4. Unlike comparable regulatory search and seizure regimes, the Bill does not contain safeguards specifically directed at protecting the right to not be compelled to incriminate oneself.6

Conclusion – search and seizure


  1. We consider that the search powers provided by the Bill are not unreasonable because the powers that potentially require self incrimination (new s 59A(1)(f)) will be exercised subject to a code of conduct. The Bill requires that the code of conduct must contain provisions designed to protect individual privacy. Given that the protection of individual privacy is at the heart of s 21, and in the absence of clear contrary wording, the code of conduct will need to comply with the right to be free from unreasonable search or seizure.

Section 25(c) – right be presumed innocent

  1. Section 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proved guilty according to law. The presumption of innocence requires that the onus of proof lies with the prosecution and that guilt must be proved by the prosecution beyond a reasonable doubt.
  2. Several provisions in the Bill make it an offence for a person to do a certain act “without reasonable excuse”. New s 61A makes it an offence to fail or refuse to comply with s 56 without reasonable excuse ($2,000 fine) and new s 61B makes it an offence to fail or refuse to comply with a request under s 59A(1) without reasonable excuse ($2,000 fine).

6 Under the Financial Markets Authority Act 2011, s 56 provides that every person who has to provide information or appear and answer questions before the FMNA has the same protections as a witness in court proceedings would have (which includes the privilege against self incrimination). See also, s 216 of the Fisheries Act. Section 267 of the Companies Act 1993 clarifies that the right against self incrimination does not allow a person to refuse to answer questions, but that the persons testimony is only admissible in proceedings in limited circumstances. Other statutes clarify that it will be a reasonable excuse in relation to specified offences of failing to provide information if a person fails or refuses to answer the question on the basis that the person's answer would incriminate or tend to incriminate the person) – see, for example, s 145A(5) of the Customs and Excise Act 1996.

  1. Section 67(8) of the Summary Proceedings Act 1957 (SPA) shifts the burden of proving any exception, exemption, proviso, excuse or qualification in summary proceedings to the defendant. In our view s 67(8) would apply to new s 13B.7
  2. New ss 61A and 61B appear to limit s 25(c) of the Bill of Rights Act because once the prosecution has proved that the defendant did not comply with the relevant requirement, the accused must prove, on the balance of probabilities, that they had a reasonable excuse for failing to comply.
  3. We note, however, that s 67(8) SPA will be repealed in July 2013 when the Criminal Procedure Act 2011 comes into force. From July 2013 there will be an entirely new categorisation of offences with no equivalent to s 67(8) in any category of proceedings in relation to any exception, exemption, proviso, excuse or qualification. It is therefore likely that new ss 61A and 61B will have a reverse onus for a limited time only.
  4. We generally consider the following factors in assessing whether a reverse onus offence can be justified under s 5 of the Bill of Rights Act:
  5. The offences contained in new ss 61A and 61B are necessary to ensure that HNZ receives accurate and up to date information about the eligibility of those receiving social housing.
  6. It also appears that any excuse a defendant may have for not complying with the requirements to provide HNZ with certain information will be something peculiarly within that person’s own knowledge. For example, the defendant will be in the best place to offer evidence of why they have a reasonable excuse for not notifying HNZ of their change in circumstances. Conversely, it would be difficult for the prosecution to prove beyond reasonable doubt that the defendant did not have a reasonable excuse.
  7. The maximum penalty for an offence under new s 61A or 61B is a fine of $2,000. This is a relatively low penalty and we consider it proportionate to the policy objective.
  8. We therefore consider that any apparent limit on s 25(c) of the Bill of Rights is justified under s 5 of that Act.

7 Courts have held that s 67(8) SPA applies to the similarly worded reasonable excuse exceptions in s 13A Summary Offences Act (possession of a knife in a public place: Police v Wineera [1989] NZHC 1725; (1989) 4 CRNZ 449) and s 29(1)(b) of the Summary Offences Act (being found in an enclosed yard: Streeton v Police (HC Auckland, CRI-2006-404-147, 8 December 2006, Winkelmann J).

CONCLUSION

  1. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in 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 Housing Restructuring and Tenancy Matters (Social Housing Reform) Amendment 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.

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