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Land Transport (Clean Vehicles) Amendment Bill (Consistent) (Sections 21 and 25(c)) [2021] NZBORARp 48 (6 August 2021)
Last Updated: 9 September 2021
6 August 2021
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Land Transport (Clean
Vehicles) Amendment Bill
Purpose
- We
have considered whether the Land Transport (Clean Vehicles) 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 23381/14.0). 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 21 (right to be secure from
unreasonable search and seizure)
and s 25(c) (right to be presumed innocent
until proven guilty). Our analysis is set out below.
The Bill
- The
policy objective underpinning the Bill is to achieve a rapid reduction in carbon
dioxide emissions from light vehicles imported
into New Zealand to assist New
Zealand in meeting its 2050 target and emissions budgets under the Climate
Change Response Act 2002,
and our domestic and international climate change
ambitions and commitments.1
- The
Bill is an omnibus Bill that:
- Amends
the Land Transport Act 1998 to create a clean vehicle standard for vehicle
importers of new and used light vehicles, including
by establishing targets for
reducing carbon dioxide emissions and imposing charges payable for failure to
comply with the targets;
- Amends
the Land Transport Management Act 2013 to create a clean vehicle discount
scheme,2 to be administered by the New Zealand Land
Transport Agency (NZTA), designed to incentivise the purchase of zero and low
emission
vehicles by consumers through the issue of rebates or the imposition of
charges in relation to the carbon dioxide emissions of a
vehicle;
1 See proposed s 170 in cl 7 of
the Bill.
2 Note that, for the purpose of clean vehicle
discount scheme, the empowering provisions for regulations to impose fees and
charges
to be paid on the first New Zealand registration of imported new and
used light vehicles are contained in proposed s 167A of the
Land Transport Act
1998 (cl 5 of the Bill).
- Amends
the Energy Efficiency and Conservation Act 2000 to provide that regulations may
be made that prescribe vehicle labelling requirements
to inform consumers about
vehicle carbon dioxide emissions levels and rebates receivable or charges
payable in relation to light
vehicles offered for sale;
and
- Amends
the Income Tax Act 2007 to ensure that if an employer receives a payment under
the clean vehicle discount scheme for a vehicle
they provide for private use
(and therefore subject to fringe benefit tax), the cost of the vehicle for
fringe benefit tax purposes
is net of the amount of the payment; and
- Amends
the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011
to prohibit NZTA from issuing a certificate
of registration for a vehicle if
there are charges payable for the vehicle under the clean vehicle discount
scheme and those charges
have not been paid.
- The
targets for vehicle importers under the clean vehicle standard are set beginning
on 1 January 2023. The standard applies to new
and used imported light vehicles
(being vehicles under 3,500 kilograms). The charges payable by vehicle importers
if the targets
are exceeded are set out in proposed ss 177 and 182 of Part 13 of
the Land Transport Act 1998 (cl 7).
- Every
vehicle importer will be required to hold a carbon dioxide account with the
Director of Land Transport (Director) operated in
the manner prescribed by
regulations, and containing information also to be prescribed in
regulations.3 On and after 1 January 2023, no light
vehicle may be issued, for the first time, with evidence of vehicle inspection
unless the carbon
dioxide account number of the vehicle importer has been
provided to the Director, and the carbon dioxide emissions value of the vehicle
has been recorded in the vehicle importer’s carbon dioxide
account.4
- The
policy intention of the clean vehicle discount scheme is to require consumers
who purchase high emission vehicles to pay a charge
in recognition of the
environmental and economic costs of that vehicle, and the revenue from that
charge will be used to reward consumers
who purchase vehicles that will
contribute to lowering carbon dioxide emissions.
Consistency of the Bill with the Bill of Rights Act
Section 21 – Freedom from 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.5 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.6 Whether a search will be
reasonable turns on a
3 Proposed s 185 of the Land Transport
Act 1998 (cl 7 of the Bill).
4 Proposed s 187 of the Land Transport Act 1998 (cl
7 of the Bill).
5 Hamed v R [2011] NZSC 101, [2012] 2 NZLR
305 at [161] per Blanchard J.
6 Ibid at [162], per Blanchard J.
number of factors, including the nature of the place or object being
searched, the degree of intrusion into personal privacy, and
the rationale for
the search.
- There
are two provisions in the Bill that we consider constitute a search power under
s 21 of the Bill of Rights Act as they require
information or documents to be
produced, and one of these powers also contemplates removal of records for
inspection which we consider
amounts to a seizure.
- The
power to require a person to appear before a specified person to give
evidence,7 either orally or in writing, prima facie
also engages the right to freedom of expression guaranteed under s 14 of the
Bill of Rights Act. This right has been interpreted to
mean the right not to be
compelled to say certain things or provide certain
information.8 As the information or documents are
sought primarily for the purpose of regulatory compliance and enforcement of the
clean vehicle
standard, we have considered them through the lens of s 21 for the
purpose of this advice.
Requirement to produce for inspection any
records or other information
- Proposed
s 197 of the Land Transport Act 1998 provides that the Director may, for the
purpose of establishing compliance with the
requirements and obligations of the
clean vehicle standard, require a vehicle importer to produce for inspection any
records or other
information in the person’s possession or control that
the Director reasonably considers necessary to establish compliance
with the
requirements and obligations of the clean vehicle standard.
- The
Director may inspect and make copies of, or take extracts from, the records or
other information. Where a vehicle importer chooses
to produce the records or
other information at their premises or any other place of inspection, the
Director may make copies of or
remove the records or other information at the
place of inspection.9 If the Director removes any
records or other information, the Director must issue a receipt, return the
records as soon as practicable,
and allow the person from whom the records were
taken to inspect or copy the records. This is accompanied by an offence for
failing
to refuse or comply with a requirement made under proposed s 197.
- The
power in proposed s 197 of the Land Transport Act 1998 for the Director to
require a vehicle importer to produce for inspection
any records or other
information is limited to records or information that the Director
‘reasonably considers necessary’
to establish compliance with the
requirements and obligations of the clean vehicle standard. We consider that
this is an appropriate
threshold for a search power in order to assist with
monitoring compliance with the clean vehicle standard, for example, to ensure
that the requirement to collect and keep data and information in proposed s 194
is being complied with by a vehicle importer.
7 Proposed s 197A(4) of the Land Transport
Act 1998 (cl 7 of the Bill) defines ‘specified person’ as an
employee of the
NZTA or person to whom the Director has delegated the power to
receive documents or evidence to.
8 See, for example, Slaight Communications v
Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
9 There is no power to enter a vehicle
importer’s premises provided in the Bill.
- The
content of the information that may be required to be provided by vehicle
importers appears to relate to information about the
vehicles themselves
(although may conceivably capture some personal details of purchasers), and is
therefore not likely to contain
highly personal information, such that the
intrusion into personal privacy is limited.
- Accordingly,
we consider that the search and seizure powers contained in s 197 are
reasonable.
Requirement to supply information, produce documents
or give evidence
- Proposed
s 197B of the Land Transport Act 1998 provides that the Director may require, by
written notice, a person to supply information,
produce documents or give
evidence to a specified person if the Director considers it ‘necessary or
desirable’ for the
purposes of performing or exercising the
Director’s functions, powers or duties in relation to the clean vehicle
standards
under proposed Part 13 of the Land Transport Act 1998. Failing or
refusing to comply with a notice given under proposed s 197B is
an offence (see
proposed s 197C).
- We
consider that the search powers contained in s 197B are reasonable for the
following reasons.
- We
understand the power in proposed s 197B relates to the Director’s ability
to require information from a person who may hold
information that is necessary
to establish a vehicle importer’s compliance with the clean vehicle
standard. The information
and documents the Director seeks must be
‘necessary or desirable’ for the purpose of performing or exercising
the Director’s
functions, powers, or duties under proposed Part 13.
- The
Director has specific responsibilities under proposed Part 13 including to
determine whether to close a carbon dioxide account,10
verify vehicle importation, charges payable and charges
paid,11 determine the carbon dioxide emissions value of
an imported vehicle (if the manufacturer has not determined an
amount),12 and determine whether a vehicle importer may
defer their obligation to meet a target.13 To that
extent, we consider the power to require such information and documents, and
give evidence, while significant powers, appear
appropriate and proportionate to
give effect to the clean vehicle standard, on the basis that such information
may not be held by
the vehicle importer or that a third party may hold
information necessary to establish a vehicle importer’s compliance with
the standard.
- Further,
we consider that there appear to be adequate safeguards provided to regulate the
Director’s powers under proposed s
197B.
- First,
proposed s 197D provides any person given notice by the Director has the same
privileges in relation to providing information
and documents to, and
10 Proposed s 192 of the Land
Transport Act 1998 (cl 7 of the Bill).
11 Proposed s 193(1)(c) of the Land Transport Act
1998 (cl 7 of the Bill).
12 Proposed ss 174(4) and 176A(3)(d) of the Land
Transport Act 1998 (cl 7 of the Bill).
13 Proposed s 189 of the Land Transport Act 1998 (cl
7 of the Bill).
answering questions before the Director (or employee or authorised person),
as witnesses in proceedings before a court.14
- Second,
proposed s 197F provides that any information obtained by the Director under
proposed s 197B that is found by a court to have
been unlawful exercise of power
must be destroyed and will not generally be able to be used in civil
proceedings, criminal proceedings
or in connection with other powers conferred
by the Land Transport Act 1998.15
- On
this basis we consider that any search and seizures authorised by the Bill are
reasonable for the purposes of s 21 of the Bill
of Rights
Act.
Section 25(c) – Right to be considered innocent until proven guilty
- Section
25(c) of the Bill of Rights Act affirms the right of everyone charged with an
offence to be presumed innocent until proved
guilty according to law. The right
to be presumed innocent requires the Crown to prove an accused person’s
guilt beyond reasonable
doubt.
- The
Bill adds a number of offences into the Land Transport Act 1998 which are strict
liability offences. These are:
- proposed
s 195 that introduces an offence for, without reasonable excuse, failing to
comply with the requirements in proposed s 194
to collect data and keep records
for the purposes of the clean vehicle standard;
- proposed
s 197A that creates an offence for, without reasonable excuse, failing or
refusing to comply with a requirement made under
proposed s 197 in relation to
an inspection or audit; and
- proposed
s 197C(1)(a) that creates an offence for, without reasonable excuse, failing or
refusing to comply with a notice given under
proposed s 197B to supply
information, produce documents or give evidence.
- Strict
liability offences prima facie limit s 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. A provision found to limit a particular right or freedom may
nevertheless
be justified in terms of s 5 of the Bill of Rights Act. The s 5
inquiry asks whether the objective of the provision is sufficiently
important to
justify some limitation on the right or freedom; and if so, whether the
limitation is rationally connected and proportionate
to that objective
14 We understand this provision means that
if a person could, in a proceeding, assert a privilege under sections 54 to 57
of the Evidence
Act 2006 in respect of certain communication or information, the
person is taken to have the same privilege for the purposes of a
requirement to
supply the information under new 197B of the Bill. Sections 54 to 57 relate to
privilege for communications with legal
advisers, solicitors’ trust
accounts, preparatory materials for proceedings, and settlement negotiations,
mediation, or plea discussions.
15 Unless the court hearing the proceeding in which
the evidence is sought to be adduced is satisfied that there was no unfairness
in
obtaining the evidence (proposed s 197G(4) of the Land Transport Act
1998).
and limits the right or freedom no more than reasonably necessary to achieve
that objective.16
- We
consider that the limits on the presumption of innocence created by the strict
liability offences are justified under s 5 of the
Bill of Rights Act
because:
- the
offences are regulatory offences and not “truly criminal” in
nature;
- the
alleged offender is in the best position to justify their apparent failure to
comply with the law, rather than requiring the Crown
to prove the opposite;
and
- the
penalties are solely financial in nature and the maximum penalty of $15,000 for
an individual and $75,000 for a body corporate
is proportionate in the
circumstances. We also note that the parties to which the offence provisions
apply are commercial actors
and body corporates engaged in a regulated
industry.
- On
this basis we consider that any limits on s25(c) within the Bill on the right to
be presumed innocent until proved guilty are justified
in terms of 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
16 Hansen v R [2007]
NZSC 7, [2007] 3 NZLR 1.
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