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Social Housing Reform (Transaction Mandate) Bill (Consistent) (Sections 5, 27) [2015] NZBORARp 26 (19 June 2015)

Last Updated: 17 January 2019

Social Housing Reform (Transaction Mandate) Bill

19 June 2015

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Social Housing Reform

(Transaction Mandate) Bill

Purpose

1. We have considered whether the Social Housing Reform (Transaction Mandate) 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 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 section 27(3) (right to bring civil proceedings against the Crown). Our analysis is set out below.

The Bill

3. This Bill is an omnibus Bill that:

a. amends the Housing Corporation Act 1974 to provide designated Ministers with the authority to transfer Housing New Zealand Corporation (HNZC) properties by entering into contracts and performing other acts in the name of, and on behalf of, HNZC;

b. amends the Housing Act 1955 to give the Minister of Housing the exclusive power to administer State housing land;

100. amends the Housing Restructuring and Tenancy Matters Act 1992 to clarify that the ‘offer- back provisions’ in the Public Works Act 1981 do not apply (and have never applied) to land vested in Housing New Zealand Limited.
     

Consistency of the Bill with the Bill of Rights Act

Section 27(3) - Right to bring civil proceedings against the Crown

4. Section 27(3) of the Bill of Rights Act provides that “[e]very person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.”

5. The right to bring civil proceedings is a procedural right, not a substantive one. It “does not create new remedies”, instead it “guarantees that civil proceedings that could be brought by one citizen against another on the basis of currently recognised causes of action can also be brought...against the Crown”. [1]

6. New sections 50E, 50F, and 50G of the Housing Corporation Act, inserted by this Bill, relate to new ministerial powers to enter contracts on behalf of the HNZC. New section

50R(1) provides that HNZC (or its subsidiaries) is liable for the actions of the Minister under those sections. Conversely, new section 50R(2) provides that “[n]either the Crown nor the Minister is responsible or liable to any person by reason of acting, or having not acted, under section 50E, 50F, or 50G”.

7. New section 50R(2) is a procedural bar to people taking actions against the Crown (or the Minister) for a breach of contract or for other recognised causes of action that normally can be brought in a civil proceeding. A central question, in deciding if section 27(3) of the Bill of Rights Act is engaged in this instance, is whether HNZC (which can be sued) is part of “the Crown” for the purposes of section 27(3).

8. Section 15 of the Crown Entities Act 2004 explicitly states that a statutory entity (which includes HNZC) is “a legal entity separate from its members, office holders, employees, and the Crown” (emphasis added). This tends to suggest that HNZC is not part of the Crown for the purposes section 27(3) of the Bill of Rights Act and that new section 50R(2) prima facie limits the right to bring civil proceedings against the Crown.

9. We have not found it necessary to form a view on this interpretational issue as, even if new section 50R does limit the right to bring civil proceedings against the Crown, we consider it is a reasonable and demonstrably justified limit in terms of section 5 of the Bill of Rights Act. This is because:

a. the changes in the Bill enable the Government to carry out its social housing reform programme, which is aimed at the important objective of providing vulnerable New Zealanders with housing that meets their needs for the duration of that need;

b. it is more appropriate for liability to rest with HNZC (or its subsidiaries) for actions the Minister takes under new sections 50E, 50F, or 50G, as any contract will be in HNZC’s name and it is better placed to understand its existing obligations;

c. there is a reasonable alternative available to individuals – bringing civil proceedings against

HNZC (or its subsidiaries) – and therefore the limit on the right is minimally impaired.

Conclusion

10. 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 Social Housing Reform (Transaction Mandate) 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] Andrew Butler & Petra Butler, The New Zealand Bill of Rights Act: a commentary (Wellington, New Zealand; LexisNexis NZ Limited, 2005) at 25.4.17; also see Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at [55].