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Health and Safety Reform Bill (Consistent) (Sections 21, 25(c)) [2014] NZBORARp 4 (28 February 2014)

Last Updated: 24 March 2019

Health and Safety Reform Bill

28 February 2014 Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Health and Safety Reform Bill

Purpose

1. We have considered whether the Health and Safety Reform Bill (PCO 17687/3.0) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).
   
2. 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 the consistency of the Bill with s 21 (the right to be secure against unreasonable search or seizure) and s 25(c) (the right to be presumed innocent). Our analysis is set out below.
   

The Bill

3. The Bill reforms New Zealand’s workplace health and safety system. It repeals and replaces the Health and Safety in Employment Act 1992 and the Machinery Act 1950. The reformed system has roles for government, business and workers in securing the health and safety of workers and workplaces.
   
4. This is a large regulatory bill that engages a number of rights in the Bill of Rights Act. The more significant issues are analysed below.
   
5. Where rights are limited, we consider that they are rationally connected to the important purpose of securing the health and safety of workers and workplaces, and are justified under s 5 of the Bill of Rights Act. The Bill therefore appears to be consistent with the rights and freedoms affirmed in the Act.
   

Consistency of the Bill with the Bill of Rights Act

Section 21 - Right to be secure against unreasonable search or seizure

6. 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. Section 21 protects against activities constituting a “search or seizure” that are “unreasonable” in the circumstances. A request for information or documents constitutes a search for the purposes of s 21. 1
   
7. The Court of Appeal stated that the main aim of s 21 is to protect privacy interests 2:

It is only where a person's reasonable expectations of privacy have been breached that a personal remedy under the Bill of Rights ... is available. The reasonable expectation of privacy enjoyed by a person is to be judged largely objectively. A broad view of privacy interests should be taken ...

Power of inspectors to deal with causes of imminent danger

8. Clause 187 applies when an inspector has entered a workplace for the purpose of performing a function under the relevant health and safety legislation. It provides that where an inspector believes on reasonable grounds that any material, substance or thing is a cause of imminent danger, he or she may seize or destroy it, or take any other action to make the workplace safe.
   
9. Before exercising the power, the inspector must take a sample of the cause of imminent danger, if it is reasonably practicable to do so. As soon as practicable after exercising the power, the inspector must give written notice of the action taken to the person conducting a business or undertaking (PCBU) in control of the workplace.
   
10. We consider that the search and seizure power contained in cl 187 appears reasonable. In reaching this conclusion, we note that cl 187 is not intended to confer a general power of search and seizure in cases of imminent danger. Rather, it allows steps to be taken to make a workplace safe if a danger is discovered in the course of other functions.
    

Power of health and safety medical practitioner to require a worker to provide a bodily sample

11. Clause 200 provides that a health and safety medical practitioner may require a worker to provide a bodily sample if satisfied that the worker is, has been, or may have been, exposed to a significant hazard at work. The practitioner must also be satisfied that by testing or analysing the sample, it is likely to be possible to determine whether or to what

extent the worker has been exposed, or the extent to which the worker’s health has been or may have been affected by the exposure. A medical practitioner must hold a current practicing certificate.

12. Bodily integrity is an important aspect of a person’s privacy interests. There must be a strong justification for taking a bodily sample for it to be reasonable in the circumstances.
    
13. We consider that the taking of bodily samples is reasonable in the circumstances envisaged by the Bill. We note that the information extracted from the worker’s bodily sample may be of interest beyond that worker to others who have, or may have been, exposed to the hazard, such as visitors to the workplace. Further, we note that the medical practitioner cannot have a sample taken unless satisfied that testing or analysing the sample is likely to produce relevant information.
    

Section 25(c) – Right to be presumed innocent until proven guilty according to law

14. Section 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proven guilty according to law. The right to be presumed innocent requires that an

individual must be proven guilty beyond reasonable doubt, and that the State must bear the burden of proof. 3

Strict liability offences

15. The Bill creates a number of strict liability offences 4 for individuals and “other persons” (for example, corporations). The offences cover a range of conduct, from failure to return a health and safety identity card (sch 2, cl 16, maximum penalty $2000 fine) to failing to comply with a health and safety duty that exposes an individual to the risk of death or serious injury or illness (cl 43, maximum penalty $150,000 for individuals or $1.5 million for other persons).
    
16. We consider that the strict liability offences set out in the Bill appear to be justified. In reaching this conclusion we have taken into account the nature and context of the conduct being regulated, the ability of the defendants to exonerate themselves and the penalty levels. The Bill creates offences that regulate the workplace. The courts have generally accepted that there is a distinction between "truly criminal offences" and offences that are considered to be in the realm of "public welfare regulatory offences" 5 . Strict liability is more easily justifiable for regulatory offences. People are expected to meet certain expectations of care and accept enhanced standards of behaviour and regulation in the workplace.
    
17. The onus of proof is also reversed for two strict liability offences designed to protect workers who participate in the Bill’s workplace health and safety system from adverse actions. Clause 112 makes it unlawful for a PCBU to engage in “adverse conduct” (defined in cl 110) against workers for “prohibited health and safety reasons” (defined in cl 111 - for example, because the worker undertakes a health and safety role), but only if the prohibited health and safety reason was the dominant reason for the adverse conduct. Clause 113 makes it unlawful for a PCBU request, instruct, induce, encourage, authorise, or assist another person to engage in adverse conduct in breach of cl 112.
    
18. Clause 116(2) provides that the burden of proof shifts to the defendant to prove that the prohibited health and safety reason was not the dominant reason for the conduct where the prosecution proves that adverse conduct was engaged in, and has adduced evidence that the adverse conduct was engaged in for a prohibited health and safety reason. We consider this to be a justified limit on s 25(c) of the Bill of Rights Act because the defendant will be in the best position to provide evidence on the dominant reason for that conduct.
    

Conclusion

19. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Tania Warburton

Acting Chief Legal Counsel Office of Legal Counsel

Footnotes

1. New Zealand Stock Exchange v Commissioner of Inland Revenue [1992] 3 NZLR 1 (PC). 2. R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA) at [48] and [236].

3. R v Wholesale Travel Group (1992) 84 DLR (4th) 161, 188 citing R v Oakes [1986] 1 SCR 103
4. Strict liability offences are those with no mental element, such as intent or recklessness.
5. Civil Aviation Authority v MacKenzie [1983] NZLR 78
   

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 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.