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Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Bill (Consistent) [2022] NZBORARp 65 (11 November 2022)
Last Updated: 26 November 2022
11 November 2022
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Health and Safety at
Work (Health and Safety Representatives and Committees)
Amendment Bill
Purpose
- We
have considered whether the Health and Safety at Work (Health and Safety
Representatives and Committees) 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 23521/8.0). 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 25(c) (the right to be
presumed innocent until proved guilty
according to law). Our analysis is set out
below.
The Bill
- The
purpose of the Bill is to contribute to improved health and safety outcomes in
New Zealand workplaces and reduced work-related
harms. It seeks to enhance
worker access to formal worker engagement, participation, and representation
mechanisms by removing current
thresholds that limit worker access to health and
safety representatives (HSRs) and health and safety committees (HSCs).
- The
Bill amends the Health and Safety at Work Act 2015 to provide that all Persons
Conducting a Business or Undertaking (PCBUs) must:
- hold
an HSR election if requested by a worker; and
- establish
an HSC if requested by an HSR, or by five or more
workers.
Consistency of the Bill with the Bill of Rights Act
Section 25(c)
- Section
25(c) of the Bill of Rights Act affirms the right to be presumed innocent until
proven 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.1 In order to give full recognition to
this right, a fundamental principle of criminal law, the legal burden of proving
every element
of an offence to the required standard of
1 Hamed v R [2011] NZSC 101, [2012]
2 NZLR 305 at [172] per Blanchard J.
proof, and the onus for disproving any potentially available defence, must
remain on the prosecution.
- The
Bill contains two strict liability offences:
- An
offence for the failure of the PCBU to initiate election of an HSR within a
certain timeframe of the PCBU receiving the notification
(cl 62(5)); and
- An
offence for failure of the PCBU to establish an HSC as soon as practicable after
receiving a request (cl 66(4)).
- Strict
liability offences prima facie limit s 25(c) of the Bill of Rights Act
because 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.
- Strict
liability offences have been considered 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 that the limit on section 25(c) of the Bill of Rights Act appears
justifiable as:
- the
offences are rationally connected to the objective of establishing stronger
worker representation and participation rights for
workers, to improve health
and safety outcomes, and reduce work-related harm;
- the
offences apply in a regulatory context, in which PCBUs would be best placed to
advise of any reason for their non-compliance.
Although no statutory defences
are provided for, the defence of total absence of fault would be available;
and
- the
penalties for the offences are relatively modest ($5,000 for an individual
and
$25,000 for any other person) and are not
disproportionate to the Bill’s objective.
- For
the above reasons, we consider the strict liability offences to be justified
under section 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.
Edrick Child
Acting Chief Legal Counsel Office of Legal Counsel
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