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COVID-19 Recovery (Fast-track Consenting) Bill (Consistent) (Section 27) [2020] NZBORARp 29 (9 June 2020)
Last Updated: 8 July 2020
9 June 2020
LEGAL ADVICE
LPA 01 01 21
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 Recovery
(Fast-track Consenting) Bill
Purpose
- We
have considered whether the COVID-19 Recovery (Fast-track Consenting) 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
with the latest version of the Bill (PCO 22822/5.0).
We will provide you with
further advice if the final version of the Bill includes amendments that affect
the conclusions in this
advice.
- The
purpose of the Bill is to urgently promote New Zealand’s economic recovery
from the COVID-19 pandemic by providing employment
opportunities and certainty
for ongoing investment while applying appropriate environmental safeguards. The
Bill seeks to achieve
this by expediting resource consenting and designation
processes for infrastructure and development projects. The Bill also enables
specific work on existing infrastructure to occur without the need for a
resource consent.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
this conclusion, we
have considered the consistency of the Bill with s 27(1) (the right to the
observance of the principles of natural
justice) and s 27(2) (the right to a
judicial review of determinations) of the Bill of Rights Act. Our analysis is
set out below.
The Bill
- The
Bill provides for Expert Consenting Panels (‘panels’) to be
appointed to consider and determine applications for resource
consents and
notices of requirement for designations for certain eligible projects, replacing
the role of local authorities under
the Resource Management Act 1991
(‘RMA’). The panels will follow a fast-track consideration process
that offers a higher
level of certainty than standard RMA processes that the
consent or designation will be granted. The Bill lists Government-led projects
that will automatically be referred to a panel for consideration. It also sets
out a process by which the Minister for the Environment
can recommend that other
projects be referred to panels by Order in Council.
- The
Bill also provides that certain public infrastructure work does not require a
resource consent under the RMA. This is limited
to works undertaken by Waka
Kōtahi New Zealand Transport Agency and KiwiRail to operate, replace,
maintain and update certain
existing infrastructure within the road and rail
corridor or on land owned by the agencies. After the Bill is enacted,
Kāinga
Ora Homes and Communities and local authorities can be authorised by
Order in Council to carry out other work on infrastructure without
the need for
a resource consent. The exemption is unavailable if certain exclusion
criteria
apply, such as if the activity is a discretionary,
non-complying or prohibited activity under a relevant RMA plan or proposed plan,
or if it affects a wāhi tapu or other site of cultural or historical
significance.
Section 27(1) - the right to the observance of the principles of natural
justice
- 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.
- Clauses
13 to 20 of the Bill authorise panels to consider listed and referred projects
and set out the process by which applications
for the referral of non-listed
projects to a panel are to be considered by the Minister. Schedule 6 outlines
the fast-track procedure
by which panels are to consider applications and
notices of requirement. The fast-track procedure involves expedited timeframes,
targeted rather than public consultation (cl 18 and 19), and limited appeal
rights (cl 41). There is no requirement for a panel to
hold a hearing (cl 20).
Further, under cl 26 of the Bill, the need to obtain a resource consent under
the RMA before undertaking
certain works on existing public infrastructure is
removed altogether. By bypassing the normal participatory requirements for
consenting
decisions under the RMA in these ways, the fast-track consenting and
designation processes set out in the Bill could limit the right
to natural
justice.
- Where
a provision is found to pose 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 demonstrably justified in terms of s 5 of that Act.
Following the guidance
of the New Zealand Supreme Court in Hansen v
R,1 the s 5 inquiry may be summarised
as:
- Does
the objective serve a purpose sufficiently important to justify some limitation
of 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?
- The
Bill’s objective of urgently promoting New Zealand’s economic
recovery from the COVID-19 pandemic by providing employment
opportunities and
certainty for ongoing investment is self-evidently sufficiently important to
justify some limit on the right to
natural justice.
- The
ability to accelerate or avoid resource consenting and designation processes is
rationally connected to this objective. An important
part of the criteria by
which projects have been and will be assessed as suitable for referral to a
panel is their ability to help
to achieve the purpose of the Bill, and a panel
may decline a consent application or cancel a notice of requirement if it
considers
that the consent or designation would not meet the Bill’s
purpose.
1 [2007] NZSC 7
- While
the Bill overrides the participatory process in the RMA, it puts in place an
alternative, targeted consultation process for
listed and referred projects. A
panel considering a resource consent application or notice of requirement must
invite and consider
comments from a list of stakeholders that includes iwi
authorities, Treaty settlement entities, customary marine title groups, and
protected customary rights groups. In relation to referred projects, a panel
must also consult any other person referred to in the
relevant referral order.
Comments may also be invited from any other person the panel considers
appropriate. The Minister is subject
to natural justice obligations when
considering an application to refer a project to a panel and may invite comment
from any person.
- We
wish to draw particular attention to cl 25 of Sch 6, which sets out a process by
which a panel can seek further information on
a proposal before issuing a final
decision. Clause 25(4) prohibits a person to whom further information obtained
by the panel has
been circulated from commenting on that information unless
requested by the panel. We consider that the express prohibition in cl
25(4),
while unusual, reflects a legitimate need to draw some limit on the opportunity
for dialogue before a decision is made. The
suggestion that a panel could
request comment on further information if appropriate carries the implication
that a person could request
the opportunity to comment on further information
and have that request considered by the panel in accordance with the
requirements
of natural justice.
- We
similarly consider that the exemption for certain public infrastructure
activities from the usual requirement to obtain a resource
consent is a
reasonable limitation on the right to natural justice, noting the importance of
the objective of the Bill and the limitations
on the scope of the exemption
described in para 6 above.
- For
these reasons, we consider that any limits within the Bill on the right to
natural justice are justified under s 5 of the Bill
of Rights
Act.
Section 27(2) - the right to a judicial review of determinations
- Section
27(2) of the Bill of Rights Act provides that every person whose rights,
obligations, or interests protected or recognised
by law have been affected by a
determination of any tribunal or other public authority has the right to apply,
in accordance with
law, for judicial review of that determination.
- The
right to judicial review is intended to ensure that anyone with an interest in a
decision can challenge the lawfulness of that
decision. The phrase “in
accordance with law” recognises that limits may be imposed on the power of
judicial review,
but “any attempt completely to deprive the High Court of
its review powers would violate the
guarantee”.2
- Clause
43 of Sch 6 to the Bill requires a person who wishes to both appeal and apply
for judicial review of a panel decision to file
the appeal and the application
at the same time. This prohibition amounts to a procedural restriction on the
right to judicial review,
and therefore prima facie limits s 27(2) of the Bill
of Rights Act.
- Requiring
litigants to raise all objections to a panel’s decision at once promotes
the Bill’s objectives by reducing the
risk that a disaffected party could
needlessly draw out the grant of a resource consent or designation by filing
successive challenges
to the same decision. We regard this limit on the use of
judicial review as a proportionate means of
2 A Bill of Rights for New Zealand: A
White Paper [1984-1985] I AJHR A6 at [10.175].
ensuring the efficiency of the resource consenting, designation and court
processes. The limit does not substantively affect an individual’s
review
rights and goes no further than is necessary to achieve its objective. Similar
provisions, while uncommon, are not unheard
of in New Zealand
legislation.3
- For
these reasons, we consider that any limits within the Bill on the right to
judicial review 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
3 See for example
Immigration Act 2009, s 149A; Local Government (Auckland Transitional
Provisions) Act 2010, s 159.
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