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Building Amendment Bill (Consistent) (Sections 14, 18, 21) [2018] NZBORARp 66 (19 July 2018)
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Building Amendment Bill (Consistent) (Sections 14, 18, 21) [2018] NZBORARp 66 (19 July 2018)
Last Updated: 4 January 2019
19 July 2018
LEGAL ADVICE
LPA 01 01 23
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Building Amendment
Bill
Purpose
- We
have considered whether the Building 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 18130/20.0). 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), s
18 (freedom of movement) and
s 21 (right to be secure against unreasonable
search and seizure). Our analysis is set out below.
Summary
- The
Bill amends the Building Act 2004 (‘the Act’). It raises limitations
on rights and freedoms affirmed in the Bill of Rights Act, particularly s 14
(freedom
of expression), s 18 (freedom of movement), and s 21 (right to be
secure against unreasonable search and seizure). These rights and
freedoms are
limited as the Bill provides powers to compel the provision of information,
restrict access to buildings, and enter
and inspect buildings and land, in order
to protect people from risks to their life and safety.
- We
conclude that the Bill is consistent with the rights and freedoms affirmed in
the Bill of Rights Act. In reaching that conclusion,
we have considered the
importance of protecting persons from risks to their life and safety following
an emergency, and of investigating
building failures to learn lessons which may
help to prevent future harm.
The Bill
- The
Bill proposes two new sets of powers to improve the system for managing
buildings after an emergency and to investigate building
failures.
Managing buildings after an emergency
- The
new powers for the management of buildings after an emergency are largely
contained in new subpart 6B of the Act, inserted by
cl 12. These powers seek to
create an end-to-end process for managing buildings after an emergency. They are
designed to remedy deficiencies
in the existing powers under the Act that became
evident in the aftermath of the Canterbury and Kaikōura
earthquakes.
- The
trigger for the application of the powers is the designation of an area for the
purposes of the new subpart. If a state of emergency
or transition period is in
force under the Civil Defence and Emergency Management Act 2002, an area can be
designated by a relevant
Civil Defence and Emergency Management
(‘CDEM’) official. Alternatively, if an emergency has arisen but no
state of emergency
or transition period is in force, all or part of the affected
area can be designated by a territorial authority or the Minister responsible
for the Act. Designations expire after three years, but may be terminated
earlier or extended for up to a further three years.
- While
a designation is in force, the relevant CDEM official, a territorial authority
or the Minister (depending on whether a state
of emergency or transition period
is in force and who designated the area) can exercise a range of powers in
relation to buildings
in the area. These powers include the ability to undertake
post-event assessments, to evacuate, prohibit or restrict access to buildings,
to require information, and to undertake works on buildings and
land.
Investigating building failures
- The
second new set of powers are largely contained in new sections 207C to 207S,
inserted by cl 19. These provisions provide the chief
executive of the Ministry
of Business, Innovation and Employment with new powers to investigate the
circumstances and causes of building
failures that caused, or could have led to,
serious injury or death.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms 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 to freedom of expression has also been
interpreted as including the right
not to be compelled to say certain things or
to provide certain information.1
- New
s 133BT provides that a responsible person may direct the owner of a building or
land in a designated area to provide information
related to that building or
land to determine any risks or work needed. It is an offence to intentionally
fail to comply with a direction
under s 133BT.
- New
s 207M enables the chief executive to require any person to provide any
information or document reasonably necessary to help determine
the circumstances
or causes of a building failure. It is an offence under new s 207S to wilfully
fail to provide any information
or document required by s 207M.
- New
ss 133BT and 207M compel the provision of information and therefore appear to
limit s 14 of the Bill of Rights Act.
1 RJR MacDonald v Attorney-General of
Canada (1995) 127 DLR (4th) 1.
Is the limit justified and proportionate under s 5 of the Bill of Rights
Act?
- Where
a provision is found to limit 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. The s 5 inquiry may be
approached as follows:2
- does
the provision serve an objective sufficiently important to justify some
limitation on the right or freedom?
- if
so, then:
- is
the limit rationally connected with the
objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
- We
consider that the limitations arising from new ss 133BT and 207M are justified
as the objectives of those new sections reflect
the Bill’s purposes of
managing risks to people and property after an emergency, and enabling lessons
to be learned from building
failures to prevent future harm. These objectives
are sufficiently important to justify some limitation on the right to freedom of
expression.
- New
ss 133BT and 207M are rationally connected to the objective as:
- a
responsible person may only make a direction under new s 133BT if they
reasonably believe that further information is reasonably
necessary to determine
risks or work needed; and
- the
chief executive may only require a person to provide information or a document
under new s 207M where they reasonably consider
it may help to determine the
circumstances or causes of the building failure.
- These
factors also support our view that the new sections impair the right no more
than is reasonably necessary. An express purpose
of the Bill is to ensure that
any impacts on personal and property rights are proportionate. To this end, each
new set of powers
in the Bill is accompanied by generally applicable safeguards
which improve the Bill’s overall consistency with the Bill of
Rights Act.
In relation to the new powers for managing buildings after emergency
events:
- new s
133BB introduces a paramount principle to guide the performance of functions and
duties and the exercise of powers under subpart
6B. That paramount principle is
the protection of persons from risks to their life and safety;
- new s
133BE provides that a designation (in relation to an area) may not be made
unless the person is satisfied that it is in the
public interest and is
necessary or desirable to protect people, buildings, public thoroughfares, or
critical infrastructure;
2 Hansen v R [2007] NZSC
7 at [123].
- new
s 133BH requires a designation to be reviewed every 90 days, and new s
133BJ enables a designation to be terminated early
if no longer in the public
interest;
- a
responsible person using powers relating to the emergency management of
buildings must have regard to the principles set out in
new s 133BO. Those
principles include preferring actions that result in the least restriction on an
individual’s ability to
use and occupy their property, that actions should
be proportionate and last no longer than reasonably necessary, and that powers
should be exercised using up-to-date information; and
- cl 16
extends the existing ability under s 177 of the Act for individuals to apply for
determinations by the chief executive of the
Ministry of Business, Innovation
and Employment. A person may make an application for a determination in relation
to the use of a
power of decision under new subpart 6B that affects
them.
- In
relation to the new powers to investigate building failures:
- new s
207C provides the chief executive may only investigate a building failure where
the requirements in that section are satisfied,
including that the building has
failed, and that the failure resulted or could have resulted in serious injury
or death;
- new s
207D provides that the new powers must be exercised only for the purposes of
learning from the failure, informing decisions
about the performance of
functions and duties and the exercise of powers under the Act, and informing
decisions about any matters
related to building to help prevent other failures;
and
- new
s 207E provides that the chief executive must exercise the powers of
investigation only if reasonable in the circumstances to
do so, in a way that is
reasonable and for no longer than is reasonable.
- In
addition to these general safeguards, there are safeguards applicable
specifically to new ss 133BT and 207M which help to ensure
that they impair the
right to freedom of expression no more than is reasonably necessary. In
particular, new s 133BT is subject to
an appeals process and new s 207N places
limits on the chief executive’s ability to share evidence or information
collected
in the investigation of a building failure, including information that
owners have been required to provide under new s 207M.
- The
limits in new ss 133BT and 207M are in due proportion to the importance of the
objective. This view is supported by the principles
for decision-making in new s
133BO, which provides that actions should be proportionate to the risks being
managed. It is also supported
by the limits to powers of investigation in new s
207E, which provides that investigation powers must only be used if it is
reasonable
in the circumstances to do so.
Conclusion
- For
the reasons above, we conclude that the limits to the freedom of expression
imposed by the Bill are justified under s 5 of the
Bill of Rights
Act.
Section 18 – Freedom of movement
- 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.
- New
ss 133BQ and 133BR provide for a responsible person3
(or constable in the case of s 133BQ) to evacuate a building or
designated area, or put in place measures to keep people at a safe
distance from
or protect a building in a designated area. Further, new s 207G provides for
the chief executive to restrict or prohibit
access to, or to secure, all or part
of an investigation site. Measures may include preventing or limiting access to
a building or
surrounding area. These new sections therefore limit the right to
freedom of movement.
- However,
we consider the limitation justified under s 5 of the Bill of Rights Act, for
substantially the same reasons discussed in
relation to new ss 133BT and 207M
above:
- the
Bill’s objectives, furthered by new ss 133BQ, 133BR and 207G are
sufficiently important to justify some limitation on the
right to freedom of
movement;
- new
ss 133BQ, 133BR and 207G are rationally connected to these objectives, as the
powers conferred under those sections may help to
manage the risks to people and
property following an emergency and enable lessons to be learned from building
failures; and
- the
right is minimally limited and in due proportion to the importance of the
objective as:
- the
powers under sections 133BQ, 133BR and 207G are subject to the general
safeguards discussed in paragraphs 18 and
19 above;
- a
direction for evacuation under new s 133BQ may only be made if the responsible
person or constable is satisfied the evacuation is
necessary to prevent the
death or injury of any person in the designated area;
and
- interim
measures may be put in place under new s 133BR, if considered reasonably
necessary to keep people at a safe distance from
a building, or to protect a
building from being damaged or further damaged, and must be removed after any
works under ss 133BU or
133 BV have been carried out, or if no longer
required.
- For
these reasons, we consider that the limits placed by the Bill on the right to
freedom of movement are justified.
Section 21 – Right to be secure against 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, their property or
correspondence, or otherwise.
- A
search or seizure which is unreasonable in terms of s 21 cannot be justified in
terms of s 5 of the Bill of Rights Act.4
3 Being a person who is authorised to
exercise powers under new subpart 6B of Part 2 of the Act.
4 Cropp v Judicial Committee [2008] 2 NZLR
774 (SC) at [33].
- The
Bill introduces new powers of entry and inspection, which constitute search and
seizure powers for the purposes of s 21. Section
133BP provides that a
responsible person may enter a building if they have reasonable grounds for
believing entry is necessary to
make a post-event assessment of a building.
Further, if a chief executive decides to investigate a building failure under
new s 207C,
they may use the powers of entry and inspection set out in ss 207H
and 207J:
- new s
207H enables the chief executive to enter an investigation site if they
reasonably consider that it contains evidence that may
help determine the
circumstances or causes of the building failure; and
- new s
207J enables the chief executive to take samples and evidence from the building
or land, or any personal property at the investigation
site if it is reasonably
considered that it may help determine the circumstances or causes of the
building failure.
- In
assessing whether the search and seizure powers in ss 133BP, 207H and 207J 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 in ss 133BP, 207H and 207J of the Bill are not
unreasonable for the purposes of s 21 of the Bill of Rights
Act. Powers of entry
and inspection are required to assess and manage the risks posed by buildings
following an emergency, and to
investigate and learn from the underlying
circumstances and causes of building failures. Powers of entry and inspection,
therefore,
help to achieve the important objective of protecting persons from
risks to their life and safety.
- The
Bill also contains safeguards which help to ensure that the right to be secure
from unreasonable search and seizure is impaired
no more than is necessary. In
addition to the general safeguards described in paragraphs 18 and 19 above:
- the
powers can only be used where it is reasonably considered that entry is
necessary for a post-event assessment or that an investigation
site contains
evidence that may help determine the circumstances or causes of the building
failure;
- the
powers of entry under s 133BP and s 207H can only be used in respect of a
simple-unit residential building, or a household unit
that is being used as
such, with the occupier’s consent or in accordance with a
warrant;
- the
powers of entry under s 133BP can only be used in respect of any other building
or land after taking reasonable steps to obtain
the occupier’s consent to
entry;
- any
sample or other evidence seized under new s 207J must be returned to its owner
if it is no longer required for the investigation
and its return is
practicable;
- new s
207I provides that, where the investigation site is a household unit, a person
must not use the power of entry in s 207H unless
they have obtained the consent
of the occupier or a warrant;
- the
powers to enter a simple-unit residential building or a household unit with a
warrant in new ss 133BP and 207I are subject to
the search warrant provisions in
subpart 3 of Part 4 of the Search and Surveillance Act 2012;
and
- the
power to take samples and other evidence in s 207J is subject to certain
provisions of the Search and Surveillance Act 2012, including
the obligation to
return an original if a copy is sufficient (s 152) and the ability to apply to
the District Court for the release
of seized items (s 159).
- We
consider that the powers of entry and inspection are rationally connected and
proportionate to the objective. We have therefore
concluded that the powers 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
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