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Student Loan Scheme Amendment Bill (No 3) (Consistent) (Section 18) [2013] NZBORARp 30 (1 August 2013)

Last Updated: 7 April 2019

Student Loan Scheme Amendment Bill (No 3)

1 August 2013 Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Student Loan Scheme Amendment Bill (No 3)

1. We have considered whether the Student Loan Scheme Amendment Bill (No 3) PCO

17404/4.1 (‘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 Legislation Committee at its meeting on 8 August 2013.

The Bill

2. The Bill amends the Student Loan Scheme Act 2011 and the Student Loan Scheme Amendment Act 2013. It aims to update the Student Loan Scheme Act 2011 and amend the obligations for overseas-based borrowers and borrowers who are shareholders in close companies.
   
3. Clause 8 of the Bill inserts new s 162A in the Student Loan Scheme Act 2011, which creates an offence where a person is notified by the Commissioner that they are in default of their overseas-based repayment obligations and deliberately fails or refuses to make reasonable efforts to pay or make arrangements to pay.
   
4. 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 conclusion, we have considered an issue with s 18 (freedom of movement).
   

Consistency with s 18 of the Bill of Rights Act

5. New s 162B provides for a District Court Judge or Registrar, on an application by the Commissioner, to issue a warrant for the arrest of a person if the Judge or Registrar is satisfied that there are reasonable grounds for believing the person has committed the offence in s 162A, and is about to leave or attempt to leave New Zealand without making reasonable efforts to pay or arrangements to pay.
   
6. Section 162B appears to limit s 18(3) (freedom of movement) of the Bill of Rights Act. Under s 162B(2)(b) and (c), the court may make orders that a liable person not leave New Zealand without the written permission of the court, and/or that the liable person surrender any travel documents to the court. The court may give notice of the orders to relevant departments of State, offices or other persons under s 162B(3) and it will be an offence

under 162B(4) for a person against whom an order is made to leave or attempt to leave New Zealand.

7. However, the limit on the freedom of movement appears to be justified under s 5 of the Bill of Rights Act. Section 162B serves an important objective in encouraging overseas-based borrowers to make contributions towards the repayment of funds borrowed from the Government. It is difficult to enforce repayment once a person has left New Zealand.
   
8. In addition, there are several safeguards in relation to an order under s 162B(2):
   

(a) The Judge or Registrar must have reasonable grounds for believing that a person has been notified by the Commissioner and has deliberately failed or refused to make efforts or make arrangements under section 162A before a warrant for arrest is issued and the person is brought before the court.

(b) It is open to the court to make other orders, such as that the liable person gives security, rather than the orders in s 162B(2)(b) or (c).

(c) A person against whom an order is made may apply to the court to have the order discharged (s 162B(5)).

9. Finally, the exercise of the power to make orders must be carried out in a manner consistent with the Bill of Rights Act, similar to other situations where s 18(3) is engaged, such as s 199 of the Child Support Act 1991 (a provision which closely resembles new s 162B).
   

Conclusion

10. 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 Student Loan Scheme Amendment Bill (No 3). 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.