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Pae Ora (Healthy Futures) Bill (Consistent) (Sections 14, 19, 25(c) and 27(1)) [2021] NZBORARp 64 (12 October 2021)
Last Updated: 31 October 2021
12 October 2021
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Pae Ora (Healthy
Futures) Bill
Purpose
- We
have considered whether the Pae Ora (Healthy Futures) 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 23441/6.0). 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 the right to freedom of
expression, the right to freedom from
discrimination, the right to be presumed
innocent until proved guilty, minimum standards of criminal procedure, and the
right to
justice. Our analysis is set out below.
Summary
- The
Bill provides for the public funding and provision of health services and
establishes publicly-owned health organisations. It
aims to improve equity,
promote and protect health, and achieve pae ora/healthy futures for all New
Zealanders.
- The
provision requiring individuals to provide information to the mortality review
committees for its purposes engages the right to
freedom of expression.
Provisions explicitly promote Māori health and the principles of Te Tiriti
o Waitangi and may be seen
to engage the freedom from discrimination on the
basis of race or ethnic origins. A strict liability offence in relation to
information
required or held by mortality review committees engages the right to
be presumed innocent until proved guilty. Provisions to dismiss
and remove
people from boards and committees engages the right to justice.
- We
have concluded that, to the extent that the Bill limits these rights and
freedoms, the limits are justified. The Bill therefore
appears to be consistent
with the rights and freedoms affirmed in the Bill of Rights
Act.
The Bill
- Following
a health and disability review the New Zealand Government announced a health
system reform that will fundamentally change
the structure and delivery of
health services in New Zealand. It is therefore necessary to repeal the New
Zealand Public Health and
Disability Act 2000 in its entirety. The Bill replaces
that Act.
- The
specific purposes of the Bill, as outlined in cl 3, are to provide for the
public funding and provision of health services in
order to—
- protect,
promote, and improve the health of all New
Zealanders
- achieve
equity by reducing health disparities among New Zealand’s population
groups, in particular for Māori, and
- build
towards pae ora (healthy futures) for all New
Zealanders.
- The
Bill disestablishes New Zealand's District Health Boards (DHBs) and establishes
Health New Zealand (Health NZ). It also transfers
DHBs’ assets and
liabilities to Health NZ to reduce system complexity and enable consistency and
a population health focus.
Under the Bill, Health NZ will establish regional
divisions to plan and commission primary and community health services and
engage
with communities. Health NZ's decisions about the delivery of primary and
community health services, and development of a New Zealand
Health Plan, must be
made jointly with the Māori Health Authority (the Authority).
- The
Bill establishes the Authority to drive improvement in hauora Māori. Its
functions include policy and strategy, commissioning
services, and performance
monitoring. The Authority's structure is designed to ensure it has operational
autonomy to give effect
to Māori aspirations and needs, while remaining
aligned with other health entities and structures. The Bill also provides for
iwi-Māori partnership boards to represent Māori perspectives at a
local level, and for Health NZ and the Authority to provide
support for the
boards to carry out their functions.
- The
Bill makes a suite of related changes to existing public health system
structures and roles, including:
- refocusing
the Ministry of Health's role on strategy, policy, regulation, and monitoring,
and establishing a Public Health Agency
within the Ministry
- providing
for permanent public health advisory and Hauora Māori advisory
committees
- transferring
functions currently held by Te Hiringa Hauora/Health Promotion Agency and
entities under the New Zealand Public Health
and Disability Act
2000
- strengthening
system leadership and intervention powers, and
- requiring
the creation of accountability documents, including a Government Policy
Statement and a New Zealand Health Strategy, Plan,
and
Charter.
Consistency of the Bill with the Bill of Rights Act
Section 14 - Right or 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.1
- Clause
2 of Sch 4 of the Bill allows the chairperson of a mortality review committee,
or its agent, to require information that is
relevant to the mortality review
committee’s functions from any person who has possession or control of
that information. It
is an offence under cl 73(5) of the Bill to not comply with
this requirement without reasonable excuse. These provisions prima facie
limit the freedom of expression under s 14 of the Bill of Rights Act.
1 RJR MacDonald v Attorney-General of
Canada (1995) 127 DLR (4th) 1.
- Where
a provision is found to limit 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. Justification
under s 5 occurs
where the limit seeks to achieve, and is rationally connected
to, a sufficiently important objective; impairs the right or freedom
no more
than reasonably necessary to achieve the objective; and is otherwise in
proportion to the importance of the objective.2
- Mortality
review committees are statutory committees that review and report to the Health
Quality and Safety Commission on particular
deaths, or the deaths of particular
people, in order to learn how to best prevent those deaths in the future. For
mortality review
committees to be able to conduct effective reviews which lead
to system-wide improvements, they need to be able to gather information
from a
wide range of sources. Clause 2 of Sch 4 enables the mortality review committees
to do this. We consider that this requirement
is rationally connected to the
Bill’s overarching objective of improving the health system and its
outcomes.
- The
Bill recognises the sensitive nature of the information that is likely to be
provided to the mortality review committees. Information
may only be requested
where the information is relevant to a committee’s functions and Sch 4
places statutory limits on when
and how a committee can disclose the
information. Further, cl 73(6) provides that a person who discloses information
contrary to
Sch 4 is liable to a fine not exceeding
$10,000.
- There
is also an offence under cl 73(5) for failure to provide information. It appears
this is necessary to encourage compliance with
the requests from the chair of a
mortality review committee, or the chair’s agent. We consider the offences
to be rationally
connected to the objective of obtaining necessary and relevant
information to enable the mortality review committee to conduct an
effective
review and consider them to be a proportionate
response.3
- For
the reasons above, we consider that these limitations are proportionate and
limit the right to freedom of expression no more than
is reasonably necessary.
We therefore consider that any limits within the Bill on the right to freedom of
expression are justified
in terms of s 5 of the Bill of Rights Act.
- For
completeness, we consider that the power to require information (and the
associated offence for failure to provide it) can also
be considered a search
engaging s 21 of the Bill of Rights Act, which protects against unreasonable
search and seizure. However,
for the reasons given above, we do not consider it
amounts to an unreasonable search in terms of s 21 of the Bill of Rights
Act.
Section 19 – Freedom from discrimination
- Section
19(1) of the Bill of Rights Act affirms the right to freedom from discrimination
on the grounds set out in the Human Rights
Act 1993 (the Human Rights Act). The
key questions in assessing whether there is a limit on this right
are:4
2 See Hansen v R [2007] NZSC 7,
[2007] 3 NZLR 1 (SC).
3 We discuss these offences further below at para 30
to 37 in relation to the presumption of innocence.
4 See, for example, McAlister v Air New Zealand
[2009] NZSC 78, [2010] 1 NZLR 153; Ministry of Health v Atkinson
[2012]
NZCA 184[2012] NZCA 184; , [2012] 3 NZLR 456; and Child Poverty Action Group Inc v
Attorney-General [2013] NZCA 402, [2013] 3 NZLR
729.
- does
the legislation draw a distinction on one of the prohibited grounds of
discrimination under s 21 of the Human Rights Act; and
if so,
- does
the distinction involve disadvantage to one or more classes of
individuals?
- A
distinction will arise if the legislation treats two comparable groups of people
differently on one or more of the prohibited grounds
of discrimination. Whether
disadvantage arises is a factual determination.5
- The
Bill has various provisions to explicitly promote Māori health and uphold
the principles of Te Tiriti o Waitangi. One of
the Bill's three stated purposes
is to achieve equity by reducing health disparities among New Zealand’s
population groups,
in particular for Māori. The health system principles in
clause 7, which are mandated to guide the Ministry's and other health
entities'
functions under the Act, predominantly focus on improving the health system's
support, responsiveness, empowerment, and
outcomes for Māori.
- Further
to this emphasis, the Bill:
- establishes
the Authority (cl 17) and the Hauora Māori Advisory Committee to advise the
Minister of Health (cl 83)
- gives
recognition to iwi-Māori partnership boards to enable Māori to
contribute to local planning and decision-making on
health priorities (cl 92 and
Sch 3)
- requires
Health NZ and the Authority to work together to achieve equitable outcomes for
Māori (s 6(e))
- requires
the boards of Pharmac, the New Zealand Blood and Organ Service, and the Health
Quality and Safety Commission to endeavour,
where appropriate, to ensure
representation of Māori on their committees (cl 80), and
- requires
the boards of Health NZ and the Authority to have collective knowledge of,
experience, and capability in giving effect to
Te Tiriti o Waitangi; to engage
with Māori; and to understand mātauranga Māori (cl
6).
- While
the Bill requires the creation of a Disability health strategy (cl 38) and
Pacific health strategy (cl 37), there is no other
explicit prioritisation of
other groups' interests. There is also no obligation to appoint Board members
who have knowledge or expertise
in other cultural approaches, and no obligation
to appoint an authority or permanent committee to advise Health NZ or the
Minister
of Health on other non-Māori interests and knowledge.
- The
Bill could therefore be seen to draw distinctions on the basis of race or ethnic
origins. However, to the extent the distinctions
reflect the status of
Māori as the Crown's Treaty partner, and the Crown's duties under Te Tiriti
o Waitangi, we do not consider
any other group is in a comparable position. The
result of this assessment is that s 19 of the Bill of Rights Act is not
engaged.
- Nevertheless,
for completeness we have considered whether a disadvantage arises to any class
of people. We do not consider that this
is the case, for the following
reasons.
5 See, for example McAlister v Air New
Zealand above n 4 at [40] per Elias CJ, Blanchard and Wilson JJ.
- The
relevant provisions are not designed to provide a specific advantage to
Māori, but rather to achieve equity among New Zealand’s
population
groups. Addressing inequity does not result in disadvantage to those not already
disadvantaged. As the Bill identifies,
disparities in health services, access,
and outcomes exist currently, in particular for Māori. This factor also
supports our
assessment that the Bill's distinctions are not drawn between
comparator groups.
- The
requirements for boards of health entities to have collective knowledge and
experience to te ao Māori do not prevent non-Māori
from being
appointed. Because the requirement applies collectively, we do not consider even
an indirect disadvantage arises to non-Māori
seeking appointment. Even if
we had concluded otherwise, we would have considered the resultant limit on the
freedom from discrimination
to be justified. Without this collective knowledge,
Health New Zealand, the Authority, and health entity boards would have
difficulty
performing their functions in a way that meets their
obligations.
- More
generally, while it is an inescapable fact of our health system that resources
need to be prioritised, nothing in the Bill requires
a choice between different
population groups. In any case, to the extent the Bill is found to create any
disadvantage to non-Māori,
we consider that disadvantage would be both
minor and justified in light of Te Tiriti o Waitangi and the imperative of
reducing systemic
inequities and improving hauora
Māori.
Section 25(c) - Right to be presumed innocent until proved guilty according to
law
- Section
25(c) affirms the right to be presumed innocent until proved guilty. The right
to be presumed innocent requires that an individual
must be proven guilty beyond
reasonable doubt, and that the State must bear the burden of
proof.6
- To
give full recognition to this fundamental principle of criminal law, the
prosecution must retain both the legal burden of proving
every element of an
offence to the required standard of proof, and the onus for disproving any
potentially available defence.
- Clause
73 of the Bill creates two strict liability offences.
- Every
person who fails, without reasonable excuse, to comply with a requirement
imposed under Sch 4 by the chairperson of a mortality
review committee to
provide information commits an offence and is liable on conviction to a fine not
exceeding $10,000 (cl 73(5)).
- Every
person who discloses information contrary to Sch 4 commits an offence and is
liable on conviction to a fine not exceeding $10,000
(cl
73(6)).7
- Strict
liability offences prima facie limit s 25(c) of the Bill of Rights Act.
This is because a strict liability offence may be provided by a finding that
certain facts
occurred without proof of mens rea. The accused is required
to prove a defence (on the balance of probabilities), or disprove a presumption,
to avoid liability. This
means that, where the accused is unable to prove a
defence, they could be convicted even where reasonable doubt about their guilt
exists.
6 R v Wholesale Travel Group (1992)
84 DLR (4th) 161, 188 citing R v Oakes [1986] 1 SCR 103.
7 While there is no specified defence to this
offence, the 'total absence of fault' common law defence will apply. This is
available
in respect of any charge, whether under the Crimes Act 1961 or
otherwise, unless it has been modified or is inconsistent with the
relevant
offence provisions (s 20(1) Crimes Act 1961).
- Strict
liability offences have been considered more justifiable where:
- the
offence is in the nature of a public welfare regulatory offence;
- the
defendant 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
penalty for the offence is proportionate to the importance of the Bill’s
objective.
- We
consider the limit on s 25(c) to be justified under s 5 of the Bill of Rights
Act because:
- the
mortality review committees’ need to obtain necessary and relevant
information to enable them to conduct effective reviews
in order to reduce the
number of deaths of groups of people; and
- the
mortality review committees have an obligation to protect personal and
potentially sensitive health information, from disclosure
outside of the
committee.
- The
penalties for the offences are financial in nature, carrying a fine of up to
$10,000, and do not involve imprisonment. We consider
financial penalties are
appropriate in these circumstances as they ensure that people comply with the
requests for information and
ensure personal information is protected, and
thereby meeting the Bill’s objective of improving the health system and
its outcomes.
- For
the reasons given above, we have concluded that the offences set out in cl 73
are justified in terms of s 5 of the Bill of Rights
Act.
Section 27(1) – Right to justice
- Section
27(1) of the Bill of Rights Act provides that every person whose interests are
affected by a decision of a public authority
has the right to the observance of
the principles of natural justice. Section 27 is concerned with procedural
fairness and what will
be procedurally fair depends on the facts of each case.
Natural justice includes the right to a fair hearing.
- There
are a number of provisions which enable the Minister of Health to remove members
from various entities which prima facie engage s 27(1). However, we are
satisfied that s 27(1) is not engaged for the following reasons:
- Clause
11 provides that the Crown Entities Act 2004 applies to Health NZ except to the
extent expressly provided otherwise. Clause
54(6) provides that all provisions
of the Crown Entities Act that apply to appointed members of a board apply, with
necessary modifications,
to a commissioner and a deputy commissioner that are
appointed under cl 54 to replace Health NZ or the Authority. Sections 38 –
41 of the Crown Entities Act require that the removal of individuals from
members of boards must have just cause, and that the process
for removal must
comply the principle of natural justice.
- Clause
23 of the Bill outlines that the Minister of Health can remove a member of the
board of the Authority at any time, but only
if the Minister considers that the
removal is justified and has consulted the Hauora Māori Advisory Committee
and had regards
to its views. Because the Authority is an independent statutory
entity it does not benefit from ss 38 – 40 of the Crown Entities
Act.
However, cl 24 applies s 41 of the Crown Entities Act to the Authority, which
ensures the principles of natural justice apply
to the removal of members of its
board.
- Other
clauses in the Bill specify Ministerial rights to dismiss or remove people from
certain roles.8 While specific procedural requirements
are scarce in these provisions, we note that the Public Service
Commission’s guidance
on Ministerial Advisory Committees provides that the
same principles apply to the appointment process as to that of a Crown entity
board member.9 This suggests that the Minister of
Health must have just cause to remove an individual from an advisory committee
and the process
for removal must comply with the principle of natural
justice.
- Further,
the Minister is obliged to act consistently with the Bill of Rights Act in the
exercise of public and statutory functions.
Combined with the desirability of
flexible and responsive processes, and the ability to judicially review any
Ministerial action
on the basis of unreasonableness, we are satisfied that these
provisions are not inconsistent with s 27(1) 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
8 Clause 81 allows the
Minister of Health to establish any committee they consider necessary or
desirable for any purpose relating to
the Bill or its administration, and to
appoint or remove any person as a member or chairperson by written notice.
Clauses 83, 84
and 85 require the Minister to appoint a Hauora Advisory
Committee, national advisory committee on health services ethics and an
expert
advisory committee on public health, but do not specify processes for
appointment or removal of members.
9 Public Service Commission Machinery of
Government Supplementary Guidance Note: Ministerial Advisory Committees.
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