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Greater Christchurch Regeneration Bill (Consistent) (Sections 5, 18(1), 27(1)) [2015] NZBORARp 58 (19 October 2015)

Last Updated: 3 March 2019

Greater Christchurch Regeneration Bill

19 October 2015

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Greater Christchurch Regeneration Bill

Purpose

1. We have considered whether the Greater Christchurch Regeneration 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’).
   

The Bill

2. The Bill’s purpose is broadly consistent with the 2010 and 2011 Canterbury Earthquake legislation, in that it is designed to enable an effective response to the Canterbury earthquakes that began in September 2010. What has changed since the earlier legislation is the state of recovery. Immediate emergency works have now evolved into planning, rebuilding and the regeneration of greater Christchurch. This includes the removal, repair, rebuilding, and development of land, infrastructure and other property.
   
3. In particular, the Bill provides a legislative basis to support the outstanding stages of recovery, and recognises the need for community participation. It also recognises changes in recovery leadership and the delivery of functions, as well as the need for an orderly transition to standard regulatory arrangements. It also enables the Crown to effectively manage, deal with and dispose of land acquired by the Crown under the Bill and the Canterbury Earthquake Recovery Act 2011.
   
4. The state of emergency is no longer in place and much of the Bill is devoted to regeneration of the area. Accordingly, it may be harder now to continue to justify some of the powers that limit rights affirmed in the Bill of Rights Act, if the Bill contained all the same powers that were in the previous Canterbury Earthquake legislation. However, we note that many of the powers that were in those statutes are not proposed to be re-enacted in this Bill.
   

Consistency of the Bill with the Bill of Rights Act

Section 18 – Freedom of Movement

5. Section 18(1) of the Bill of Rights Act affirms that everyone lawfully in New Zealand has the right to freedom of movement and residence within New Zealand.
   
6. Clause 48(3) empowers the Chief Executive of the administering government department to give notice to the owners or occupiers of private land requiring them to vacate the land or buildings for a specified period, to enable works to be carried out there. Clause 50 allows

the Chief Executive to apply to the High Court for an order requiring an owner or occupier to comply with a notice to vacate land or a building.

7. Clause 54 of the Bill empowers the Chief Executive to restrict or prohibit access to any specified area, or to any specified building within greater Christchurch. Clause 55 of the Bill empowers the Chief Executive to prohibit or restrict public access, with or without vehicles, to any road or public place within greater Christchurch. These provisions appear to limit the freedom of movement of people who would otherwise be able to enter these areas.
   

Would the potential limitation be justified under section 5 of the Bill of Rights Act?

8. Where a provision poses a limit on a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act.
   
9. The s 5 inquiry may be approached as follows: [1]
   
   1. does the provision serve an objective sufficiently important to justify some limitation of the right or freedom?
   2. if so, then:
      1. is the limit rationally connected with the objective?
   2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?

3. is the limit in due proportion to the importance of the objective?
   

10. The purpose of clauses 48(3) and 50 is to enable necessary work to be undertaken, and in a safe manner, by clearing relevant land and buildings. To that end, the provisions seek to ensure that people comply with any notices served upon them relating to the vacation of land or a building. The purpose is sufficiently important to justify a limitation of the freedom of movement in this respect. There is a rational connection between the need to undertake works on land, and allowing the Chief Executive to have the ability to clear land and if necessary to apply to the High Court to enforce such a requirement.
    
11. The purpose of the restrictions in clauses 54 and 55 is to facilitate the practical aspects of the recovery and, in particular, to ensure the safety of individuals. From time to time, it may be necessary to prevent access to areas so that work can be carried out or because those areas are hazardous. This purpose is sufficiently important to justify some kind of limitation on the right. There is a rational connection between restricting access to areas, buildings, public places, and roads and protecting the public from the hazards resulting from earthquake damage.
    
12. In assessing whether the limitations in each of clauses 48(3), 50 and 54-55 impair the right no more than is reasonably necessary, and are proportionately connected to the purpose, it is important to note that the scope of the powers are confined by clause 11 (Powers to be exercised for purposes of this Act) of the Bill. Clause 11 permits the Minister and the Chief Executive to exercise their powers under the Bill only in accordance with the purposes of the Bill and where they reasonably consider it necessary. For this reason, we

are satisfied that the Chief Executive would only be able to prevent access to a specified area or building, road or other public place, or require the vacation of private land in order to undertake works there, where it is reasonably necessary to achieve the purposes of the Bill.

13. We have therefore concluded that the Bill appears to be consistent with the right to freedom of movement and residence affirmed in s 18(1) of the Bill of Rights Act.
    

Section 27(1) – Right to Natural Justice

14. Section 27(1) of the Bill of Rights Act affirms that “Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.”
    
15. Clause 47 of the Bill authorises the Chief Executive to carry out works on public or private land. The consent of the owner or occupier is not required. We have considered whether this provision could limit the right to natural justice affirmed in s 27(1) of the Bill of Rights Act.
    
16. In our view, although a decision to carry out work on private land does not require the consent of the land owner or occupier, the Bill does not prevent the principles of natural justice from applying to the Chief Executive in making that decision. We note that clause 48(2) of the Bill requires the Chief Executive to give notice of a proposal to carry out work on private land to the owner or occupier. The decision would be also subject to judicial review in the normal way. We therefore conclude that the Bill appears to be consistent with s 27(1) of the Bill of Rights Act.
    

Conclusion

17. We have concluded 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 Greater Christchurch Regeneration 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] Hansen v R [2007] NZSC 7 [123].