You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2013 >>
[2013] NZBORARp 42
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
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
- 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.
- 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
- The
Bill amends several Acts that relate to the accounting and audit industry. Among
other things, the Bill will:
- amend rules on
who may perform statutory audits;
- reduce
restrictions on legal form for audit firms while maintaining the quality of
audits through standards and checks; and
- make necessary
amendments to facilitate the New Zealand Institute of Chartered Accountants
(NZICA) proposal that it join with the
Institute of Chartered Accountants of
Australia (ICAA) in a new trans-Tasman institute.
- 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
- 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.
- 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.
- 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.
- 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.
- 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:
- the general
objective of this limitation appears to be to ensure NZICA members continue to
have access to, and receive the benefits
of, membership services currently
provided by NZICA if these functions are delegated to the new trans- Tasman
institute;
- there is a
strong public interest in professionals such as accountants being regulated by
their peers and being members of professional
associations; and
- a person may
choose to join Certified Practising Accountants of Australia or set up (or join)
a new accredited professional body if
dissatisfied with NZICA’s membership
requirements.
CONCLUSION
- 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.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2013/42.html