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COVID-19 (Further Management Measures) Legislation Bill (Ministry of Justice) (Consistent) (Sections 14, 19, 23(5), 25(c) and 27(1)) [2020] NZBORARp 21 (1 May 2020)
Last Updated: 26 May 2020
1 May 2020
Hon David Parker, Attorney-General
Consistency with
the New Zealand Bill of Rights Act 1990: COVID-19 (Further Management Measures)
Legislation Bill
Purpose
- We
have considered whether the COVID-19 (Further Management Measures) 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 not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 22874/4.0). We will provide
you with further advice if the final version of the Bill 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 19 (freedom
from discrimination)
- s 23(5) (right
if deprived of liberty to be treated with humanity and respect for the inherent
dignity of the person)
- s 25(c) (right
to be presumed innocent until proven guilty)
- s 27(1) (right
to natural justice)
- Our
analysis is set out below.
The
Bill
- The
Bill is an omnibus Bill introducing amendments to assist New Zealand to respond
to the wide-ranging effects of COVID-19.
- There
are 17 Schedules to the Bill. These are organised by Ministerial portfolio.
- We
have not considered Schedule 6 (Courts) or Schedule 14 (Justice). These
Schedules are being considered by the Crown Law Office.
- A
summary of the amendments made in the Bill are set out
below.
Core Provisions
- The
Core Provisions of the Bill:
- Specify the
relevant period that the provisions apply to, being from 21 March 2020 (the
start of the COVID-19 lockdown period) until
30 September 2020. This timeframe
can be extended by Order in Council up until 31 March 2021. Other regulation
making powers are
also included.
- Allow for
certain entities in the specified Acts to perform certain matters by electronic
means regardless of the entity’s constitution
or rules. Matters include
voting, calling or holding meetings, giving notices or communications, and the
making and keeping of records.
The Bill also makes it possible for certain
entities to modify certain requirements or restrictions in its constitution or
rules,
if it is not reasonably practicable to comply with them.
- Provide powers
to responsible Registrars or Ministers to exempt classes of persons from certain
provisions of specified Acts. The
process and restrictions on the exemption
powers are included in the Bill.
Schedule 1 -
Biosecurity
- The
amendments in Schedule 1 enable, during the currency of the Epidemic
Preparedness (COVID-19) Notice 2020, electronic service of:
- Declarations
that a place is a restricted place under s 130 of the Biosecurity Act 1993;
and
- Infringement or
cancellation notices under Part 4 of Schedule 2 to the National Animal
Identification and Tracing Act 2012.
Schedule 2 –
Commerce and Consumer Affairs
- Schedule
2:
- Amends the
Commerce Act 1986 to enable the Commerce Commission to authorise a contract,
agreement or understanding that may contain
a cartel provision if satisfied that
to do so will or will likely result in sufficient benefit to the public to
justify authorisation.
The amendments also simplify the authorisation process
for cartel provisions and other provisions that aim to or could substantially
lessen competition in a market, including by allowing the Commission to dispense
with the procedural requirements of s 62, which
include an obligation to
circulate a draft determination and summary of reasons to interested
parties.
- Amends the
timeframes in the Companies Act 1993 within which liquidators of an insolvent
company may recover voidable transactions.
- Amends the
Companies Act 1993 to establish a business debt hibernation ('BDH') scheme for
some entities that are facing, or that may
in the future face, significant
liquidity problems due to the effects of COVID-19. The purpose of the scheme is
to enable the business,
property and affairs of the entity to be managed in a
way that increases the chances of the entity continuing in existence or results
in a better return for its creditors or members than immediate liquidation
would. While an entity is in BDH any mortgage or other
charge over its property
is unenforceable, an owner or lessor cannot recover property used by it,
proceedings against it in any court,
tribunal or arbitral tribunal cannot be
begun or continued, and enforcement processes against it are halted. Upon entry
into the
scheme these protections apply for an initial period of 1 month, which
can be extended for a further 6 months if a majority of creditors
approve the
entity's proposed arrangement.
- Amends the
Contract and Commercial Law Act 2017 to enable deeds that create a power of
attorney in connection with a security interest
to be executed remotely, without
the physical presence of a witness, for an initial period of 6 months that can
be extended by a
further 6 months.
- Amends the
Credit Contracts and Consumer Finance Act 2003 to enable urgent changes to the
Responsible Lending Code to take effect
sooner than 28 days after their
notification in the Gazette.
- Amends the
Insolvency Act 2006 to reduce the circumstances in which irregular transactions
entered into by a person prior to their
adjudication as bankrupt can be
cancelled on the initiative of an assignee.
- Defers the
coming into force of regulatory regimes that there will no longer be time to
prepare for as a result of COVID-19 (applicable
to regimes under the Consumers'
Right to Know (Country of Origin of Food) Act 2018, the Financial Markets
(Derivatives Margin and
Benchmarking) Reform Amendment Act 2019, the Financial
Services Legislation Amendment Act 2019, the Insolvency Practitioners Regulation
Act 2019 and the Insolvency Practitioners Regulation (Amendments) Act
2019).
Schedule 3 – Commerce and Consumer Affairs –
new Schedule 12 inserted into Companies Act 1993
- Schedule
3 details a new Schedule 12 to the Companies Act 1993. The key provisions at
clauses 3 – 5 of the new Schedule provide
a ‘safe harbour’
defence for directors in relation to their duties under ss 135 and 136 of the
Act, which require a director
not to engage in reckless trading or to incur
obligations which the director does not believe will be able to be performed.
The new
defence applies to protect directors where they hold the opinion in good
faith that the company is likely to face significant liquidity
problems in the
next 6 months due to COVID-19, but it is more
likely than not that
the company will be able to pay its due debts after 30 September 2021 (or such
later date as prescribed by regulations).
Schedule 4 – Commerce and Consumer Affairs - new Schedule 13
inserted into Companies Act 1993
- Schedule
4 amends the Companies Act 1993 to provide for the creation of a Business Debt
Hibernation regime. This regime provides companies
and other entities with a
1-month protection period from creditor action to allow them to enter into
agreements with their creditors
in relation to existing debt, in order to
maximise the chance of the entity remaining in business or, where this is not
possible,
to allow for a better return for the entity’s creditors and
members than would result from an immediate liquidation of the
entity.
Schedule 5 - Corrections
- Schedule
5 amends the Corrections Act 2004 to enable hearings or applications relating to
offences against prison discipline to be
heard by audio link during the currency
of the Epidemic Preparedness (COVID-19) Notice 2020, unless the hearing
adjudicator or Visiting
Justice considers that to do so would be contrary to the
interests of justice. Section 139 of the Act currently allows for such hearings
and applications to be heard by video link, but the necessary facilities are not
widely available in prisons.
Schedule 7 - Customs
- Schedule
7 defers the revocation of the Customs Import Prohibition Order 2017 and the
Customs Export Prohibition Order 2017, which
would otherwise take place on 30
September 2020, on the basis that it will no longer be possible to prepare
replacement orders by
then due to the effects of
COVID-19.
Schedule 8 - Environment
- Schedule
8 amends the Resource Management Act 1991 to:
- Enable any
requirements that documents be made available to the public for inspection in
physical form to be satisfied by making them
available online free of charge;
and
- Enable a local
authority, consent authority or other person with authority to conduct hearings
under s 39 of the Act to direct that
such hearings be wholly or partly conducted
using remote access facilities, including audio links and AVL. Before making
such a direction,
the authority must consider that it is appropriate and fair to
do so. Any hearings conducted using remote access facilities must
be made
available to the public live and free of charge if practicable to do so, and
recording or written transcript of the hearing
must be made available online as
soon as possible after the hearing closes.
Schedule 9 -
Fisheries
- Schedule
9 amends the Fisheries Act 1996 to provide the chief executive a discretion to
cease the automatic suspension of commercial
fishing permits when the total
amount of deemed values owed by the commercial fisher includes an amount
demanded under s 76 during
20 April 2020 and 30 September 2021, and to provide
the ability for the chief executive and commercial fisher to enter into a
repayment
agreement of the total amount owed within a new specified
time.
Schedule 10 – Food safety
- Schedule
10 amends the Food Act 2014 relating to registrations which are currently
required to be renewed before they expire. New
clause 3A of Schedule 4 allows
registrations to be renewed after they have expired upon payment of a renewal
fee within 1 month after
the COVID-19 lockdown period ends, and provides a
discretion for registration authorities to renew registrations that expire in
the
4 weeks following the lockdown. It applies to the registration of a food
control plan, the registration of a food business that is
subject to a national
programme, or the registration of an importer. An affected person must not
operate the affected business until
the registration is
renewed.
Schedule 11 - Health
- Schedule
11 amends the Mental Health (Compulsory Assessment Treatment) Act
(‘MH(CAT) Act’). Currently, the MH(CAT) Act
requires physical
presence for clinical assessments, examinations, reviews of patients and
proposed patients, and for judicial examinations
of patients. The
amendments:
- provide for the
use of AVL by a clinician, psychiatrist, or mental health practitioner, when
exercising a power under the MH(CAT)
Act that requires access to a person, where
they consider it is not practicable for the person to be physically present
(proposed
new s 6A);
- provide for the
use of AVL by a Judge or a member of a Review Tribunal required to examine a
person under the MH(CAT) Act, where they
consider it is not practicable for the
person to be physically present for the examination (proposed new s 6A);
- provide that a
Review Tribunal may make a determination that a participant (including the
patient, a party, counsel, witness, a member
of the Review Tribunal) be
permitted to appear at a hearing by remote technology if the Tribunal considers
it is not practicable
for the participant to be physically present (proposed new
cl 3A of Schedule 1). Remote technology means technology that enables
communication between participants when some or all of them are not physically
present at the place of the hearing.
- provide that
district inspectors and official visitors are permitted to complete their
visitation and inspection duties using remote
technology, where they consider it
is not practicable to make the visit in person (proposed new s
97A).
- make changes to
the existing definition of medical and health practitioners to a new defined
term of 'mental health practitioner',
medical examination to 'examination', and
medical certificate to 'assessment certificate' which is for the stated purpose
of facilitating
timely assessment of patients and better use of the health
workforce.
Schedule 12 - Housing
- Schedule
12 amends s 88 of the Unit Titles Act 2010 by making it clear that members can
attend body corporate and body corporate committee
meetings by audio and
audiovisual link while the Epidemic Preparedness (COVID-19) Notice 2020 is in
force.
Schedule 13 – Internal Affairs
- Schedule
14 amends the Fire and Emergency New Zealand 2017 by inserting s 52A, which
enables the Fire and Emergency New Zealand, while
the Epidemic Preparedness
(COVID-19) Notice 2020 is in force, to prohibit lighting fires in open air and
other activities the Fire
and Emergency New Zealand consider may cause a fire to
start or spread in any area to which the epidemic notice applies.
- This
Schedule also amends the Gambling Act 2003 by inserting s 4A which modifies the
definition of “remote interactive gambling”
in s 4(1) for a period
of 18 months to enable certain specified class 3 gambling operators to undertake
remote interactive gambling.
This will allow the gambling operators to operate
their lotteries despite the social restrictions and continuing impact of
COVID-19
is likely to have on face-to- face sales.
Schedule 15
– Local Government
- Schedule
15 makes amendments to local government legislation, specifically, the Freedom
Camping Act 2011, the Local Election Act 2001,
the Local Government Act 2002,
the Local Government Official Information and Meetings Act 1987, the Local
Government (Rating) Act
2002 and the Waste Minimisation Act 2008.
- This
Schedule also makes changes to the management of local government by–
election timings, provides a temporary definition
of “public
notice”, postpones the revocation of bylaws, and makes changes to the
process used by local authorities when
making changes to their long-term
plans.
Schedule 16 – Policing
- Schedule
16 amends the Arms Act 1983 by inserting s 65I which extends the duration of any
dealer’s licence or firearms licence
that have or are set to expire during
the COVID-19 outbreak.
Schedule 17 – Workplace Relations
and Safety
- Schedule
17 provides for a temporary amendment to the Parental Leave and Employment
Protection Act 1987 under a new Part 3B to that
Act. The amendments would last
until two years after the date when the COVID-19 emergency period ends and have
retrospective application,
covering persons to whom the new provisions would
apply back to 25 March 2020.
- The
new provisions apply to ‘COVID-19 response workers. These are defined
under new s 30JD as persons entitled to parental leave,
who have agreed with
their employer to temporarily return to work (or are self-employed and wish to
return to work), and whose role
cannot reasonably be filled by another person or
is in high demand in circumstances related to COVID-19.
- Under
the Parental Leave and Employment Protection Act as it currently stands parental
leave must be taken in one continuous period
and ceases if the person entitled
to leave returns to work. The principal intention of the new provisions in
Schedule 17 is to allow
COVID-19 response workers making a temporary return to
work to effectively put their parental leave on hold during that time, allowing
them to apply to continue receiving parental leave payments once they return to
their leave. A single temporary return to work may
be made for up to 12 weeks,
although Labour Inspectors are given a discretionary power under the new
provisions to extend that maximum
timeframe or allow multiple lesser periods of
work.
- Further
provisions under Schedule 17 support the intention of the above change. The
duration of the parental leave period, and the
amount of time required between
parental leave periods for separate children, is amended for COVID-19 response
workers to ensure
their entitlements are unaffected by any temporary period of
work during that time. Provisions requiring paid leave to be taken in
one
continuous period are disapplied. Pre-term baby payments, which run up to the
period where parental leave would start if a child
is born early, may also be
interrupted by a temporary return to work and resumed afterwards. Underlying
these changes, new s 30JQ
allows the responsible Department to approve a range
of ‘irregularities’ under s 71IA of the Act in relation to
applications
by COVID-19 response workers, including where those are out of time
or in the wrong
order.
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.
- The
right has been interpreted as including the right not to be compelled to say
certain things or provide certain information. Clauses
13 and 19 of the Bill
prima facie limit the right to freedom of expression by requiring entities keep
written records of any electronic
communications or modifications to their
constitutions or rules, and reasons for falling within the provisions of the
Bill. The clauses
also require entitles to notify and provide the responsible
Registrar or government agency with the written records in order to be
covered
by the Bill.
- We
consider that the limitations on freedom of expression are rationally connected
to an important objective of providing flexibility
for entities in their
day-to-day functioning during the COVID-19 response. Entities are required to
provide written records in order
to access the powers in the Bill. We consider
that this is a proportionate response.
- Clause
9 of Schedule 15 inserts new ss 83B to 83D into the Local Government Act 2002.
Section 83 of the Local Government Act sets
out a special consultative procedure
that a local authority must adopt and use when required under the Act or by
other enactments.
The new s 83B authorises a local authority to use the special
consultative procedure with specified modifications. Specifically,
s 83B(4)(b)
makes the matters set out in s 83(1)(d) and (e) highly desirable but not
mandatory. These matters relate to individuals
being given the opportunity to
present their views to a local authority.
- Clause
9 may prima facie limit a person’s right to impart information. To the
extent that these modifications do limit the right
to freedom of expression, we
consider them to be justified as the local authority may use the modified
approach if, and only to the
extent that, it is satisfied that it is necessary
or desirable to support the measures taken to contain or mitigate the outbreak
of COVID-19 or its effects.
- For
these reasons, we conclude that any limits to the freedom of expression imposed
by the Bill are justified under s 5 of the Bill
of Rights
Act.
Section 19 – freedom from discrimination
- Section
19 of the Bill of Rights Act provides that everyone has the right to freedom
from discrimination. Family status, including
the fact of being a relative of or
married to a particular person, is one of the prohibited grounds of
discrimination under s 21
of the Human Rights Act 1993.
- Subpart
1 of Part 2 of Schedule 2 of the Bill amends the timeframes set out in the
within which the liquidators of an insolvent company
may recover voidable
transactions. The intention of this change is to reduce the period of
vulnerability to recovery of such transactions
where the debtor company and
creditor are unrelated parties. These changes to the voidable transactions
regime are of particular
importance due to the economic uncertainty and
liquidity issues faced by many businesses in the wake of COVID-19.
- Clause
7 of Schedule 2 inserts a new definition for “related” into the
Companies Act under s 291A, listing a broad range
of situations in which a
person may be considered related to a company, subject to rules around the
timing of the transaction. The
list includes any person who is:
- a director or
senior manager of the company or of a ‘close body corporate’
(defined separately) of the company;
- the spouse of a
director or senior manager of the company;
- a grandparent,
parent, child [or other relative] of a director or senior manager of the
company, whether or not by a step relationship,
- the spouse of
any of the relatives identified above;
- a close body
corporate of the company;
- a ‘close
business associate’ of the company (also defined separately); or
- a holder (direct
or indirect) of 5% or more interest in any class of shares in the
company.
- Clauses
8 and 9 of Schedule 2 amend ss 292 and 293 of the Companies Act, relating to
insolvent transactions and voidable charges (respectively).
Currently, a
transaction or charge by a company is voidable by a liquidator if it meets the
definition for an ‘insolvent transaction’
or ‘voidable
charge’ and was made within the period of two years prior to the
company’s liquidation. The principal
change made by this subpart would
amend these provisions so that the full two-year period applies only to
transactions between parties
which are ‘related’, with transactions
between or charges granted to unrelated persons subject to a significantly
reduced
six-month period.
- The
amendments introduced within this subpart explicitly apply a longer period of
vulnerability to voidable transactions with ‘related’
persons, who
may fall within this category based on their relations as family members. We
consider that this may prima facie discriminate on the basis of family
status.
- However,
to the extent that the right to freedom from discrimination is engaged by this
subpart we consider that the limitations on
this right are demonstrably
justified in the relevant circumstances. The relevant provisions are designed to
prevent the transfer
of funds out of an insolvent company to defeat the
liquidation process, and the changes in this subpart represent a partial
loosening
of those restrictions. Family members and spouses of business owners
are some of the persons caught by the broad definition of ‘related
parties’ whose transactions with a company warrant additional scrutiny,
which also extends to close body corporates, business
associates and trusts. The
extended period which related parties are subject to only becomes relevant where
they have been party
to an insolvent transaction or voidable charge, enabling a
person to receive payment, or obtain a charge over company property, which
they
would not be entitled to in liquidation. The distinction drawn in this provision
appears to be justified and to not go further
than reasonably necessary to
achieve its objective.
- We
have therefore concluded that the provisions in subpart 1 of Part 2 of Schedule
2 are consistent with the rights and freedoms affirmed
in the Bill of Rights
Act.
Section 23(5) – right to be treated with humanity and dignity
- We
have considered whether the proposed amendments in Schedule 11 allowing use of
remote technology engage s 23(5) of NZBORA which
provides that everyone deprived
of liberty shall be treated with humanity and with respect for the inherent
dignity of the person.
- Section
23(5) captures conduct that lacks humanity but falls short of cruelty, conduct
that is demeaning, and/or conduct that is clearly
excessive in the circumstances
but not grossly so. Previous cases on this right have largely arisen from a
context of imprisonment,
but academic commentators have argued that it applies
to persons deprived of liberty for whatever reason and by whatever means,
including
under mental health legislation. Whether s 23(5) has been breached
will require a court to consider a wide range of factors and circumstances
in an
individual case.
- We
do not consider that the discretionary ability to exercise powers under the
MH(CAT) Act through AVL or remote technology in and
of itself engages s 23(5).
Use of AVL or remote technology is not a requirement and is case specific. In
any event, we consider that
those exercising powers under the MH(CAT) Act must
exercise those powers in a NZBORA consistent manner (s 6 of
NZBORA).
Section 25(c) – right to be presumed innocent until proven guilty
- Section
25(c) of the Bill of Rights Act affirms that everyone who is charged with an
offence has, in relation to the determination
of the charge, the right to be
presumed innocent until proven guilty according to law. The right to be presumed
innocent requires
the prosecution to prove an accused person’s guilt
beyond reasonable doubt.
- Schedule
4 of the Bill contains several strict liability offences. Strict liability
offences prima facie limit 25(c) of the Bill of Rights Act because the
accused is required to prove a defence or disprove a presumption in order to
avoid
liability.
- We
have identified the following strict liability offences in the Schedule:
- Failing to
ensure creditors and the Registrar are notified that an entity is entering into
Business Debt Hibernation (cl 7(5))
- Failing to
prepare a certificate of result of vote (cl 26(3))
- Failing to
ensure creditors and the Registrar are notified of result of vote (cl
27(2))
- Failing to
ensure creditors are notified that a related creditor has voted on the
resolution (cl 34(5))
- Failing to
ensure the Registrar is notified of subsequent compromise or voluntary
administration (cl 71(4))
- We
consider that the proposed strict liability infringement offence regime serves
the important purpose to assist New Zealand to respond
to the wide-ranging
effects of COVID-19, and in particular, to increase the prospects of businesses
surviving COVID-19 and is rationally
connected to achieving this objective. In
considering whether the provisions are proportionate to their objectives, we
note that:
- The strict
liability offences apply to boards, who are commercial actors and can be
reasonably expected to comply with their obligations
to creditors;
- Defences for
strict liability offences are provided in s 376 of the Companies Act
1993;
- The board are in
the best position to justify their apparent failure to comply with the law,
rather than requiring the Crown to prove
the opposite;
- The strict
liability offences in this Bill impose maximum fines of
$10,000.
- Taking
into account the above factors, we consider the strict liability offences set
out in the Bill are justified under s 5 of the
Bill of Rights
Act.
Section 27(1) – right to natural justice
- Section
27(1) of the Bill of Rights affirms that everyone 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.
- We
have considered whether clauses of the Bill allowing for appearance by remote
access facility, such as audio link or audio-visual
link, could limit the right
to natural justice as affirmed by s 27(1) of the Bill of Rights. Provision for
use of remote technology
arises in Schedule 5 (Corrections), Schedule 8
(Environment) and Schedule 11 (Health).
- The
right to be present before the courts, which is usually interpreted to entail
physical presence, is considered a fundamental safeguard
against unfairness or
error in court proceedings. The right is reflected in a number of the specific
criminal procedure protections
of the NZBORA. In civil proceedings, it arises as
an incident of the right to natural justice affirmed by s 27(1). It is not yet
settled whether the criminal procedure protections apply in the context of
prison disciplinary proceedings in New Zealand, but the
right to natural justice
does.
- There
are inherent differences between physical presence and appearance by remote
access facility that can offend the right to be
present in court if the effect
on the fairness of the proceedings is unacceptable.
- In
respect of Schedule 5 (Corrections), to the extent that these differences could
be exacerbated by appearance by audio link as opposed
to AVL, the proposed
extension of the types of remote access facility that can be used to conduct
prison disciplinary proceedings
could engage s 27(1).
- In
considering the justifiability of any limitation on s 27(1), we note that the
proposed extension promotes and is rationally connected
to the important
objective of enabling prison disciplinary proceedings to proceed in a timely
manner notwithstanding the COVID-19
context, which could make it difficult or
impossible for external adjudicators to physically attend hearings in prisons.
Hearings
can proceed by audio link only if the relevant authority considers that
to do so is compatible with the interests of justice, and
only during the
currency of the Epidemic Preparedness (COVID-19) Notice 2020. In these
circumstances, we are satisfied that the amendment
proposed by Schedule 5 is
consistent with the rights and freedoms affirmed in the NZBORA.
- In
respect of Schedule 8 (Environment), in considering the justifiability of any
limitation on s 27(1), we note that the proposed
extension promotes and is
rationally connected to the important objective of enabling resource management
proceedings to proceed
in a timely manner notwithstanding the COVID-19 context,
which could preclude a public hearing with all participants physically present.
Hearings can be conducted by remote access facility only if the relevant
authority is satisfied that to do so is appropriate and
fair. In these
circumstances, we are satisfied that proposed new s 39AA of the RMA is
consistent with the rights and freedoms affirmed
in the NZBORA.
- In
respect of Schedule 11 (Health), we note that the differences between physical
presence and appearance by remote technology could
be exacerbated in a mental
health context.
- In
considering the justifiability of any limitation on s 27(1), we note that the
proposed amendment is rationally connected to the
important objective of
enabling Review Tribunal proceedings to proceed in a timely manner. The
principal function a Review Tribunal
is to consider the condition of a patient
who has applied for review, or in respect of whom an application for a review
has been
made, under s 79 (Tribunal review of person subject to compulsory
treatment order) or s 80 (Tribunal reviews of certain special patients)
of the
MH(CAT) Act.
- We
have also considered the safeguards. A participant may be permitted to appear at
a hearing by remote technology after the Review
Tribunal makes a determination
taking into account certain criteria: the available technology must allow,
wherever reasonably practicable,
the person to be both heard and seen; the
potential impact of the use of the technology on the effective maintenance of
the rights
of the person, including the right to assess the credibility of
witnesses and the reliability of evidence presented to the Tribunal;
and any
other relevant matters. In these circumstances, we are satisfied that there are
appropriate safeguards guiding the use of
remote technology, such that the
amendment is consistent with the rights and freedoms affirmed in NZBORA.
- We
have also considered whether the amendments to the Commerce Act 1986 in Schedule
2 concerning the ability for the Commerce Commission
to circumvent the
participatory process in s 62 could limit interested parties' rights to natural
justice as affirmed by s 27(1)
of the NZBORA.
- In
reaching the view that it does not, we note that the amendment gives the
Commission a discretion to dispense with the procedural
requirements in s 62,
but not preclude compliance in appropriate cases. Applications for authorisation
would still need to be notified
to interested parties and the public under s
60(2), and the Commission would still need to take into account any submissions
received
under s 61(3). Further, the modifications to the authorisation process
apply only to applications received during the currency or
within 6 months of
the expiry or revocation of the Epidemic Preparedness (COVID-19) Notice 2020. In
these circumstances, we are satisfied
that the proposed amendments to the
Commerce Act 1986 are consistent with the rights and freedoms affirmed in the
NZBORA.
- For
these reasons, we conclude that any limits to the right to natural justice
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.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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