You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2019 >>
[2019] NZBORARp 56
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Public Service Legislation Bill (Consistent) (Sections 14, 21) [2019] NZBORARp 56 (29 October 2019)
Last Updated: 28 March 2020
29 October 2019
LEGAL ADVICE
LPA 01 01 24
Hon Andrew Little, Acting Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Public Service
Legislation Bill
Purpose
- We
have considered whether the Public Service Legislation 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 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 21(unreasonable search and
seizure) and s 14 (freedom of expression).
Our analysis is set out
below.
The Bill
- This
omnibus Bill repeals the State Sector Act 1988 and replaces it with a new Public
Services Act. The Bill:
- clearly
establishes the purpose, principles, and values of an apolitical public service,
as well as its role in government formation;
- supports
the Crown in its commitment to its relationship with
Māori;
- states
the powers and functions of the Public Service Commissioner (“the
Commissioner”);
- legislates
for the people working within the Public Service and the minimum standards of
integrity and conduct expected;
- provides
a more flexible set of options for organisational arrangements to support the
public service in better responding to priorities
and joining up more
effectively by legislating for structures such as joint ventures,
interdepartmental executive boards, and interdepartmental
ventures;
- increases
interoperability across the public service workforce and preserves the future
public service as an attractive and inclusive
place to work;
- strengthens
leadership across the public service and provides for system and future focused
leadership.
- The
Bill also makes a small number of related amendments to the Public Finance Act
1989.
Consistency of the Bill with the Bill of Rights Act
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 protects a number of values including
personal privacy, dignity,
and property.1
- Clause
3 of schedule 3 provides that the Commissioner, or an authorised person,
may:
- enter
the premises of a public service agency; or
- require
the production of information, documents, or files; or
- require
an employee of a public service agency answer questions to enable to
Commissioner to carry out their functions.
- We
consider that cl 3 of schedule 3 is a reasonable search and seizure power for
the purposes of s 21 of the Bill of Rights Act.
- The
search is in respect of an important objective. The Commissioner’s general
functions are set out at cl 42 of the Bill and
include the overall design and
operation of all areas of government, the promotion of integrity and conduct,
accountability, and
transparency throughout agencies in the State services, and
acting as the employer of public service chief executives.
- The
privacy implications of the power are minor as information can only be required
from public service departments and deals with
public information created by
public servants in the discharge of their public duties.
- The
Bill also includes safeguards such as a requirement to provide notice to the
chief executive or board responsible for the public
service agency, and the
opportunity for them to consult the Commissioner on the exercise of the
powers.
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.2
- Various
provisions of the Bill require the provision of information from public service
departments to the Commissioner. These may
engage s 14 but are clearly justified
under s 5.
- The
information is clearly necessary as it supports the Commissioner to fulfil their
functions outlined in cl 42 of the Bill, particularly
as they relate to the
overall design and operation of all areas of government, the promotion of
integrity and conduct,
1 See, for example, Hamed v R
[2011] NZSC 101, [2012] 2 NZLR 305 at [161] per Blanchard J.
2 RJR MacDonald v Attorney-General of Canada
(1995) 127 DLR (4th) 1.
accountability, and transparency throughout agencies in the State services,
and acting as the employer of public service chief executives.
- The
provisions are also clearly proportionate as the information can only be
required from public service departments and deals with
public information
created by public servants in the discharge of their public duties.
- For
these reasons, we conclude that any limits on the right to freedom of expression
imposed by the Bill are justified under s 5 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.
Edrick Child
Deputy Chief Legal Counsel Office of Legal Counsel
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2019/56.html