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Accounting Infrastructure Reform Bill (Consistent) (Sections 5, 17, 27) [2013] NZBORARp 42 (4 November 2013)

Last Updated: 20 April 2019

Accounting Infrastructure Reform Bill

4 November 2013 Attorney-General

Legal Advice


Consistency with the New Zealand Bill of Rights Act 1990: Accounting Infrastructure Reform Bill


  1. We have considered whether the Accounting Infrastructure Reform Bill (PCO 17563/3.3)

(‘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 Thursday 7 November 2013. We understand that the Bill may be further amended before it is submitted to the Cabinet Legislation Committee. We will provide supplementary advice should this prove necessary.


  1. 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 a possible inconsistency with s 17 (freedom of association). Our analysis under that section is set out below.

THE BILL


  1. The Bill amends several Acts that relate to the accounting and audit industry. Among other things, the Bill will:
  2. NZICA members have voted in support of the proposal to create a new trans-Tasman institute. The New Zealand Institute of Chartered Accountants Act 1996 bars NZICA from implementing the proposal. The Bill would permit NZICA to implement the proposal.

CONSISTENCY WITH SECTION 17 – FREEDOM OF ASSOCIATION


  1. Section 17 provides that "everyone has the right to freedom of association". It recognises people’s freedom to enter into consensual arrangements with others, and to promote their common interests and the objectives of the associating group. The right also extends to the right not to associate, and protects the right of individuals to decide freely whether they wish to associate with others.
  1. Clause 46, new s 7A, provides that NZICA may make rules stating that a person may be a member of NZICA only if the person is also a member of “the specified association”. New s 7A is part of the amendments that allow the implementation of the proposal for a new trans-Tasman institute. The intention is that the new trans-Tasman institute will be the specified association.
  2. Under the proposal, the NZICA will remain the regulatory body for chartered accountants in New Zealand but its other functions will be able to be delegated to the new trans-Tasman institute. These delegated functions can include member services such as marketing, advocacy, training and development.
  3. If NZICA exercises the rule-making power conferred on it by new s 7A, then no person will be able to choose to be a member of NZICA and not a member of the specified association. Our view is that the rule-making power is a potential limitation on a person’s right not to associate. While membership of the specified association is not mandatory, the advantages of membership (i.e. satisfying a requirement for becoming a member of NZICA) may be so significant that in practice they may limit a person’s freedom to choose not to be a member.
  4. We have therefore considered whether the limit is justified under s 5 of the Bill of Rights. In applying s 5, it is necessary to consider whether the limitation on a right serves an important objective and, further, whether it is both rationally connected and proportionate to that objective. In our view, any limitation on

s 17 is justified on the basis that:


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 Accounting Infrastructure Reform 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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