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Companies (Limited Partnerships Identical Names Prohibition) Amendment Bill (Consistent) (Section 14) [2020] NZBORARp 52 (19 October 2020)
Last Updated: 1 January 2021
19 October 2020
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Companies (Limited
Partnerships Identical Names Prohibition) Amendment
Bill
Purpose
- We
have considered whether the Companies (Limited Partnerships Identical Names
Prohibition) 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 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).
Our analysis is set out below.
The Bill
- Section
22(2)(b) of the Companies Act 1993 (‘the principal Act’) prohibits
the Registrar of Companies from reserving a
new company name that is identical
or almost identical to that of another company. The Bill proposes to expand this
provision to
also prohibit the reservation of a new company name that is
identical or nearly identical to that of an existing limited partnership
or
overseas limited partnership.
- Section
34(b) of the Limited Partnerships Act 2008 (‘the Limited Partnerships
Act’) already prevents the Registrar from
registering a limited
partnership with a name that is identical or near identical to a registered
company or another limited partnership.
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 to freedom of expression extends to
all forms of communication
that attempt to express an idea or
meaning.1 There are very few activities that will not
be protected by the freedom of expression because most human activity has an
expressive
element.2
- The
choice of name of a company is a form of expression for the purpose of s 14. By
limiting the range of names from which companies
can choose to those that
are
1 R v Keegstra [1990] INSC 224; [1990] 3 SCR
697,729,826
2 Tipping J, Moonen v Film and Literature Board
of Review [1999] NZCA 329; [2000] 2 NZLR 9.
limits the right to freedom of expression.
- Under
s 5 of the Bill of Rights Act, a limit on a right may be justifiable where the
limit serves an important objective, the limits
on the right are rationally
connected to achieving that objective, the limit impairs the right or freedom no
more than reasonably
necessary, and the limit is proportional to the importance
of the objective.
- The
limitation proposed by the Bill is rationally connected to the important
objective of ensuring that companies and limited partnerships
have
distinguishable names, that is already reflected in the current s 22(2)(b) of
the principal Act and s 34(b) of the Limited Partnerships
Act. The range of
names from which companies can choose is limited to the minimum extent necessary
to achieve the objective. Further,
the Registrar’s discretion to determine
what counts as “nearly identical” must, by virtue of s 3 of the Bill
of
Rights Act, be exercised consistently with the freedom expression. In these
circumstances, we are satisfied that the limit on the
right is minimally
impairing, it is proportionate.
- For
these reasons, we conclude that the limit on the right to freedom of expression
proposed by the Bill is 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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