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Charities Amendment Bill (Consistent) (Section 19) [2022] NZBORARp 44 (7 September 2022)
Last Updated: 30 September 2022
7 September 2022
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Charities Amendment
Bill
Purpose
- We
have considered whether the Charities 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 21878/4.5). 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 19 (freedom from
discrimination). Our analysis is set out
below.
The Bill
- The
Bill amends the Charities Act 2005 (the principal Act), which provides
for the registration and deregistration of charities where charitable entities
are fulfilling a charitable purpose.
The principal Act provides a framework of
provisions that seek to promote public trust and confidence in charities.
- The
objective of the Bill is to make practical changes to the principal Act to
support charities to continue their vital contribution
to community wellbeing,
while ensuring that contribution is sufficiently transparent to interested
parties and the public. The Bill
does this by:
- Enabling
simpler financial reporting from small charities, to reduce compliance
burden;
- Improving
access to justice in the appeals process;
- Enhancing regulatory decision-making requirements, to further promote
transparency and fairness;
- Improving
regulatory compliance and enforcement tools; and
- Clarifying
the role of officers and supporting the governance of
charities.
Consistency of the Bill with the Bill of Rights Act
Section 19 – freedom from discrimination
- Section
19 of the Bill of Rights Act concerns the right to be free from discrimination,
on the grounds contained in the Human Rights
Act 1993, which includes
‘age’. Under s 21 of the Human Rights Act, ‘age’ means
any age commencing with the
age of 16 years.
- The
key questions in assessing whether there is a limit on the right to freedom from
discrimination are:
- Does
the legislation draw a distinction on one of the prohibited grounds of
discrimination under s 21 of the Human Rights Act?1
and, if so,
- Does
the distinction involve disadvantage to one or more classes of
individuals?2
- 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.
- Clause
7 of the Bill creates a new requirement for at least one officer of a
charitable entity to be aged 18 years or older. By removing the ability of
individuals aged 16 and 17 to be an officer
of a charity without the assistance
of an officer aged 18 and over, clause 7 treats individuals aged 16 and 17
disadvantageously
relative to individuals aged 18 and over, who may be an
officer of a charity alone or with any other officer or officers of their
choice. Accordingly, the Bill prima facie limits the right to be free from
discrimination on the basis of age.
- Any
limit on the non-discrimination right may be considered a reasonable limit if it
can be demonstrably justified in terms of s 5
of the Bill of Rights Act. The s 5
inquiry may be approached as follows:3
- Does
the provision serve an objective 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?
1 See, for example, Atkinson v Minister
of Health and others [2010] NZHRRT 1; McAlister v Air New Zealand
[2009] NZSC 78; and Child Poverty Action Group v Attorney-General
[2008] NZHRRT 31.
2 See, for example, Child Poverty Action Group v
Attorney-General above n 1 at [179]; and McAlister v Air New Zealand
above n 1 at [40] per Elias CJ, Blanchard and Wilson JJ.
3 Hansen v R [2007] NZSC 7, [2007] 3 NZLR
1.
- We
understand that part of the objective of the limitation in cl 7 is to promote
public trust and confidence in the charitable sector
by ensuring that persons
involved in charity governance are mature enough to take on the legal and
financial responsibility involved.
We consider that this objective is
sufficiently important to justify some limit on the right to freedom from
discrimination.
- In
our view, the requirement in cl 7 for at least one officer to be aged 18 years
or older is rationally connected to this objective.
We understand that the age
limit in the Bill is intended to act as a proxy for maturity. Such bright-line
age restrictions are necessarily
arbitrary to a degree but can provide a level
of certainty and consistency where (as here) an individual assessment of
maturity is
not practical. We note that the requirement in cl 7 also aligns with
similar age requirements for trustees of trusts (under the Trusts
Act 2019),
company directors (under the Companies Act 1993), and contact persons of
incorporated societies (under the Incorporated
Societies Act 2022).
- We
also consider that the age requirement in cl 7 impairs the freedom from
discrimination of individuals aged 16 and 17 no more than
is reasonably
necessary for the achievement of, and is proportionate to, its objective. The
use of ‘at least one’ ensures
that 16 and 17 year olds are not
precluded from making a significant contribution to charity governance,
including in an officer
capacity.
- For
these reasons, we consider that the limitation on s 19 of the Bill of Rights Act
in cl 7 of the Bill is justified.
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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