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Regulatory Systems (Workforce) Amendment Bill (Consistent) (Section2 14, 21) [2018] NZBORARp 62 (28 June 2018)
New Zealand Bill of Rights Act Reports
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Regulatory Systems (Workforce) Amendment Bill (Consistent) (Section2 14, 21) [2018] NZBORARp 62 (28 June 2018)
Last Updated: 4 January 2019
28 June 2018
LEGAL ADVICE
LPA 01 01 23
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Regulatory Systems
(Workforce) Amendment Bill
Purpose
- We
have considered whether the Regulatory Systems (Workforce) Amendment 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’).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 20554/12.0). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- 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)
and s 21 (unreasonable search and
seizure). Our analysis is set out
below.
The Bill
- The
purpose of the Bill is to improve regulatory systems by ensuring that they are
effective, efficient, and accord with best regulatory
practice.
- Part
1 of the Bill amends the Employment Relations Act 2000 (‘the Employment
Relations Act’). It allows a member of the
Employment Relations Authority
(‘the Authority’) to be remunerated at a higher rate where they have
been delegated duties
of the Chief of the Authority. It also authorises a Labour
Inspector to use the entry and inspection powers under s 229 of the Employment
Relations Act to investigate whether a premises is a place of employment.
- Part
1 also amends the Remuneration Authority Act 1977. It adds members of the
Employment Relations Authority, to whom the Chief of
the Authority’s
functions, duties, or powers have been delegated, to the list of officers whose
remuneration is to be determined
by the Remuneration Authority.
- Part
2 amends the Holidays Act 2003 to clarify that penalties for failure to comply
with provisions of that Act apply to persons who
are involved in the failure to
comply as well as employers.
- Part
3 amends the Parental Leave and Employment Protection Act 1987. It extends the
definition of ‘primary carer’ to include
a spouse or partner who
takes on permanent primary responsibility for the care, development and
upbringing of a child under 12 months
old, in situations where the biological
mother was not entitled to parental leave or a parental leave
payment.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of Expression
- Section
14 of the Bill of Rights Act affirms 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. The right has been interpreted as including
the right not to
be compelled to say certain things or to provide certain
information.1
- New
s 229A allows Labour Inspectors to interview any person at any premises that the
Labour Inspector reasonably believes to be a
workplace, and the power to
interview any employer or employee. Section 229(5) provides that a person is not
required to give an
answer that will incriminate them. Section 229(5A) specifies
that the interviewee’s answer is not admissible in criminal proceedings,
but the person is not excused from answering a Labour Inspector’s
questions on the grounds that doing so might expose the person
to a pecuniary
penalty.
- To
the extent that this is considered to limit the freedom of expression affirmed
in s 14 of the Bill of Rights Act, we consider that
limitation is justified
taking into account the restrictions in the Employment Relations Act on the use
of information acquired under
that power and the exemption from answering
questions if those answers would incriminate the
interviewee.
Section 21 – Unreasonable search and seizure
- Section
21 of the Bill of Rights Act affirms that everyone has the right to be secure
against unreasonable search or seizure, whether
of the person, property,
correspondence or otherwise. The right to be secure against unreasonable search
or seizure protects a number
of values including personal privacy, dignity, and
property.2
- New
s 229A of the Employment Relations Act grants a power to a Labour Inspector, who
has reasonable grounds to believe work is being
performed at a premises, to
exercise any of the powers under s 229 of the Employment Relations Act to
investigate whether:
- any
place is a workplace; or
- any
person performing work is an employee (as distinct from a contractor or another
type of worker); or
- any
person for whom work is being performed is an employer.
- Among
other powers, s 229 permits Labour Inspectors, for the purpose of performing
their legislative functions and duties, to enter
any premises at a reasonable
hour to assess whether a person is employed and to require the production of,
and to inspect and take
copies of various relevant documents relating to the
workplace or its workers.
- New
229A imposes a penalty for a person for whom work is performed who, without
reasonable cause, does not comply with the requirements
under s 229.
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705 (1977).
2 See, for example, Hamed v R [2011] NZSC 101; [2012] 2 NZLR
305 at [161] per Blanchard J.
- We
consider the extension of the powers under s 229 to a wider set of circumstances
constitutes a search for the purposes of s 21
of the Bill of Rights Act.
Ordinarily, a provision found to limit a particular right or freedom may
nevertheless be consistent with
the Bill of Rights Act if it can be considered
reasonably justified in terms of s 5 of that Act. However, the Supreme Court has
held
an unreasonable search logically cannot be demonstrably justified and
therefore the s 5 inquiry does not need to be
undertaken.3
- In
assessing whether the search and seizure powers in the Bill are reasonable, we
have considered the importance of the objective
sought to be achieved and
whether the provisions are rationally connected and proportionate to that
objective.
- We
consider that the powers of entry and inspection in new s 229A are reasonably
required to allow Labour Inspectors to perform their
functions and duties, which
are aimed at the important objective of ensuring effective enforcement of
employment standards.
- In
order to exercise the power of entry, new s 229A(2)(a) provides that a Labour
Inspector must have reasonable grounds to believe
work is being performed at the
premises. The Bill also retains the existing measures in ss 230-233A of the
Employment Relations Act
as safeguards against the power in new s 229A. These
include an obligation not to disclose information obtained as a result of a
s
229A investigation, and a requirement for a Labour Inspector to acquire a
warrant from a Judge before entering a premises that
is a dwellinghouse.
- We
therefore consider that the search and seizure powers in s 229A of the Bill are
not unreasonable for the purposes of s 21 of the
Bill of Rights
Act.
Conclusion
- 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
3 Ibid.
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