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Building (Earthquake-Prone Buildings) Amendment Bill (Consistent) (Section 19) [2013] NZBORARp 46 (14 November 2013)
Last Updated: 21 April 2019
Building (Earthquake-Prone Buildings) Amendment Bill
14 November 2013 Attorney-General
Legal Advice
Consistency with the New Zealand
Bill of Rights Act 1990: Building (Earthquake-Prone Buildings) Amendment
Bill
- We
have considered whether the Buildings (Earthquake-prone Buildings) Amendment
Bill (PCO 17754/v3.0) (‘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 Legislation Committee at its meeting on 21 November 2013.
- 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 inconsistency with s 19 (freedom from discrimination on
the grounds of disability).
Our analysis under that section is set out
below.
THE BILL
- The
Bill proposes amendments to the Building Act 2004 (the Act), which will:
- require
territorial authorities to undertake assessments of the seismic capacity of
non-residential and multi-storey/multi-unit residential
buildings within 5 years
of the legislation commencing;
- require
work on existing earthquake-prone buildings to be undertaken within one national
timeframe (20 years), subject to a number
of exemptions and exceptions;
and
- provide
clarity in relation to the definition of an earthquake-prone building, the level
of work required, and the role of central
government.
CONSISTENCY WITH THE BILL OF RIGHTS ACT
Section 19 – Freedom from
discrimination
- Section
19(1) affirms the right to freedom from discrimination on the grounds set out in
section 21 of the Human Rights Act 1993.
Disability is one of the prohibited
grounds of discrimination.
- Clause
20 of the Bill inserts new s 133AW into the Act. New s 133AW suspends the
requirement in s 112(1)(a) of the Building Act that a building consent authority
may only issue a consent for building alterations if, after the building
alteration, the building
complies
as nearly as is reasonably
practicable with the requirements of the building code relating to fire exits
and access and facilities
for persons with disabilities.
- Section
112 of the Act recognises, among other things, that alterations to buildings
should incorporate improved access for persons
with disabilities wherever this
is reasonably practicable. This promotes decision making that is consistent with
s 19 of the Bill
of Rights.
- We
have considered whether new s 133AW could give rise to discrimination under s
19(1) of the Bill of Rights Act by exempting building
owners from the
requirement in s 112 of the Act.
- Although,
new s 133AW will allow some buildings to be altered without also providing
access for people with disabilities, this will
only be possible once the consent
authority has balanced the need to earthquake strengthen against the
desirability of also improving
access for people with disabilities. We consider
that where the need to earthquake strengthen demonstrably outweighs the
desirability
of improving disabled access any resulting discrimination is
justifiable in terms of s 5 of the Bill of Rights Act. We therefore
consider
that new s 133AW does not permit decision-making that results in unlawful
discrimination.
CONCLUSION
- We
have concluded that clause 20 of 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 Building
(Earthquake-Prone Buildings) 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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