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Land Transfer (Tax Information) Bill (Consistent) (Section 5, 14) [2015] NZBORARp 21 (8 June 2015)

Last Updated: 17 January 2019

Land Transfer (Tax Information) Bill

8 June 2015

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Land Transfer (Tax Information) Bill

Purpose

1. We have considered whether the Land Transfer (Tax Information) Bill (‘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 not yet received a final version of the Bill. This advice has been prepared with the latest version of the Bill (PCO 19177/8.0) and on the understanding that the Bill will be subject to minor amendments before it is submitted to Cabinet. We will provide you with further advice if the final version of the Bill includes amendments that affect the conclusions in this advice.

3. 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 the consistency of the Bill with s 14 (freedom of expression). Our analysis is set out below.

The Bill

4. The purpose of the Bill is to amend the Land Transfer Act 1952 (‘the Act’) to require transferors or transferees of an estate in land to make a tax statement providing certain information before a property transfer can be registered.

5. New ss 156B and 156C of the Act specifies that transferors and transferees are required to provide their New Zealand Inland Revenue Department (IRD) number and their tax residency status. In the case of non-residents for tax purposes, they must name the jurisdiction where they are treated as a tax resident and their equivalent of an IRD number. A tax statement completed by or on behalf of a transferor or transferee must be in a form provided or approved by the Registrar, signed by the transferor or transferee and state their full name.

6. New s 156E of the Act creates an offence for knowingly providing false or misleading information in a statement providing the required information. The penalty on conviction for this offence is a fine not exceeding $1,000 or imprisonment for a term not exceeding three years.

7. Clauses 9 and 10 of the Bill amend the Tax Administration Act 1994 to insert a new definition of bank account number and to require bank account numbers in relation to certain overseas people.

Consistency of the Bill with the Bill of Rights Act

Section 14 – Freedom of expression

8. Section 14 of the Bill of Rights Act affirms that everyone has the right to freedom of expression. The freedom of expression is “as wide as human thought and imagination” [1] and includes any activity which conveys or attempts to convey a meaning. [2]

9. The freedom of expression also includes the right to say nothing or the right not to say certain things. [3] Clause 4 inserts new sections 156B and 156C which requires transferors and transferees of a specified estate in land to provide a tax statement prior to registration of the transfer. The tax statement must:

a. state that the transfer instrument is for an exempt transfer and specify the category of that exempt transfer, or

b. provide a range of tax information, including the transferor or transferee’s IRD number and

whether the transferor or transferee is, or is not, treated as tax resident in a jurisdiction other than New Zealand.

10. To the extent the requirement to provide this information could be considered to

engage the right to freedom of expression we consider the limitation is justified under s 5 of the Act. This is because:

a. the Bill serves an important objective - to ensure compliance with income tax obligations in relation to sale or purchase of property

b. there is a rational connection to the objective - the required information will enable IRD to follow transactions and enforce compliance with the law

100. the right is minimally limited - the information required is factual in nature and is limited only to what is necessary to achieve the purpose, and

d. the limitation is in due proportion to the importance of the objective.

Conclusion

11. 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 Land Transfer (Tax Information) 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] Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, (1999) 5 HRNZ 224 (CA) [2] Irwin Troy Ltd v Attorney-General (Quebec) [1989] 1 SC 927, 969 – 970 (SCC)

[3] Slaight Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).