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Hawke's Bay Regional Planning Committee Bill (Consistent) (Sections 14, 19) [2014] NZBORARp 7 (28 March 2014)

Last Updated: 24 March 2019

Hawke’s Bay Regional Planning Committee Bill

28 March 2014 Attorney-General

Hawke’s Bay Regional Planning Committee Bill

1. I have examined this Bill for consistency with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). I advise that the Bill is consistent with the Bill of Rights Act.
   
2. The Bill establishes the Hawke’s Bay Regional Planning Committee - a joint committee with equal representation of Hawke’s Bay Regional Council and Tāngata Whenua members. It provides for the appointment of Regional Council and Tāngata Whenua representatives to the Regional Planning Committee. It will provide for 9 iwi or hapū groups to have input into the development and review of the regional policy statement and regional plans for the Hawke’s Bay region.1 The main purpose of the Regional Planning Committee 2 is to oversee the development and review of documents prepared in accordance with the Resource Management Act for the region. 3
   
3. The preamble to the Bill records that commitments for the establishment of the Regional Planning Committee were made in the Ngati Pāhuwera Deed of Settlement and Maungaharuru-Tangitū Deed of Agreement.
   

Discussion

4. We have considered the application of s 19 of the Bill of Rights Act to this Bill. The Bill does not limit the freedom from discrimination affirmed by s 19 of the Bill of Rights Act through conferring rights on the iwi and hapū involved that are not conferred on other

people. Discrimination arises if there is a difference in treatment on the basis of one of the prohibited grounds of discrimination between those in comparable circumstances. In the context of settlements to address specified historical claims no other person could be said to be in comparable circumstances to the iwi and hapū concerned.

5. Clause 14(6) of the Bill adds two grounds for withholding information to those provided in the Local Government Official Information and Meetings Act 1987. They are:
   

5.1 Proposed s 7(2)(k) Local Government Official Information and Meetings Act - to “avoid serious offence to tikanga of any iwi or hapū represented by a tāngata whenua appointer

...”; and

5.2 Proposed s 7 (2)(l) Local Government Official Information and Meetings Act - to “avoid disclosure of the location of wāhi tapu of significant interest to any iwi or hapū represented by a tāngata whenua appointer ...”.

6. We have considered these provisions in light of the right to freedom of expression protected by s 14 of the Bill of Rights Act. Section 14 provides that everyone has the right to

freedom of expression, including the freedom to seek, receive, and impart information and

opinions of any kind in any form.”

7. Inclusion of the additional withholding grounds supports the provision of information about the location of wāhi tapu and associated tikanga as well as information about tikanga applying in respect of the Regional Planning Committee area. The provision addresses the risk that, in the absence of specific provision for protection of such information, iwi and hapū members would be reluctant to provide it. Provision of the information assists informed decision-making and increases the ability to protect wāhi tapu and other important aspects of the area.
   
8. The grounds for withholding can be outweighed if, in the circumstances of the particular case, other considerations render it desirable, in the public interest, to make the information available. 4
   
9. We have concluded that clause 14(6) is a prima facie limitation of s 14 of the Bill of Rights Act but that, given the limitation is rationally connected to an important cultural purpose and causes minimal impairment of the right, it is demonstrably justified.
   

Review of this advice

10. This advice has been reviewed by Austin Powell, Senior Crown Counsel.
    

Helen Carrad

Senior Crown 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 Crimes (Match-fixing) 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.

Footnotes

1. Explanatory note to the Bill.
   
2. Clause 9 of the Bill

3. Clause 4 of the preamble records that the Committee is already operating, but legislation is required to ensure that the committee cannot be discharged except by the unanimous written agreement of the appointers and to confirm its role and procedures.
   
4. Section 7(1) Local Government Official Information and Meetings Act.