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Health and Safety (Pike River Implementation) Bill (Consistent) (Section 21) [2013] NZBORARp 23 (12 June 2013)

Last Updated: 7 April 2019

Health and Safety (Pike River Implementation) Bill

12 June 2013 Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Health and Safety (Pike River Implementation) Bill

1. We have considered whether the Health and Safety (Pike River Implementation) Bill (PCO 17400/3.0) (‘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 the Cabinet Business Committee at its meeting on Monday, 17 June 2013.
   
2. The Royal Commission into the Pike River Coal Mine Tragedy made a number of

recommendations, following its finding that New Zealand’s regulation of health and safety in the mining industry was ineffective. The Bill, which is an omnibus bill, seeks to implement a number of those recommendations by: establishing a new workplace health and safety agency; amending the Health and Safety in Employment Act 1992; and creating a new Mines Rescue Trust Act 2013. These changes form part of a new mining regulatory regime with the objective of improving safety in the mining industry.

3. 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 view, we considered whether the Bill is consistent with the right to be secure against unreasonable search and seizure.
   
4. 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.
   
5. The following clauses of the Bill potentially engage section 21:
   
   • Clause 25, new section 19Y: empowers mine health and safety representatives to enter and inspect a mine;
   • Clause 25, new section 19Z: empowers the mine health and safety representatives on entering a mining operation to examine and copy documents relevant to health and safety; and
   • Clause 46: provides for powers of entry into premises (other than a dwellinghouse or a marae) and inspection of certain documents, and empowers an authorised person to require a person to provide information, and to assist with the reproduction of that information. These powers may only be exercised in order to ascertain whether the requirements of any regulations relating to the Mines Rescue Trust Board levy are being met.

6. In assessing whether the relevant provisions are reasonable, we have considered whether they serve a sufficiently important purpose and whether the intrusion caused is no more than is necessary to achieve that purpose.
   
7. The new mining regulatory regime serves the important objective of improving safety in the mining industry. The search and seizure powers appear to be necessary for the proper functioning of that regime. New sections 19Y and 19Z enable mine health and safety representatives to carry out their statutory functions, including investigating complaints from mine workers regarding health and safety, and monitoring measures taken by mine operators that are relevant to health and safety. Clause 46 provides necessary powers for collecting a levy from mining operators. The levy enables the recovery of costs incurred by the Mines Rescue Trust Board in performing its statutory functions.
   
8. The privacy intrusion is modest given that the premises in question are all commercial premises where the reasonable expectation of privacy is less than for dwellinghouses or marae, which are specifically excluded from the search power. We note that mining is a highly regulated industry, in part due to the need to prevent hazardous outcomes, and this also reduces the reasonable expectation of privacy.
   
9. For these reasons we have concluded that the search and seizure powers contained within the Bill are reasonable, and 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 Health and Safety (Pike River Implementation) 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.