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Child Support Amendment Bill (No 4) (Consistent) (Section 27(1)) [2005] NZBORARp 8 (8 April 2005)
Last Updated: 15 September 2020
Child Support Amendment Bill (No 4) 2005
8 April 2005
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
CHILD SUPPORT AMENDMENT BILL (No 4) 2005
- We
have considered whether the Child Support Amendment Bill (No 4) ("the Bill") is
consistent with the New Zealand Bill of Rights
Act 1990 ("the Bill of Rights
Act"). We understand that the Bill is to be considered by the Cabinet
Legislation Committee at its
meeting on Thursday, 14 April 2005.
- The
Bill amends the Child Support Act 1991 ("the CSA") in order to:
- improve the
level of compliance with the CSA to ensure that children receive the financial
support that they are entitled to;
- provide for
greater flexibility in the way that penalties are imposed for outstanding
financial support liabilities under the CSA;
- provide a
framework that will enable the Commissioner to determine whether individuals
should be exempted from liability under the
CSA;
- ensure that
liable parents' contributions more accurately reflect their ability to provide
financial assistance; and
- ensure that the
rights of parties to proceedings in the Family Court pursuant to a determination
under the CSA are given equal recognition.
- The
CSA currently allows for certain liable persons to be exempted from any
requirement to provide financial support. These exemptions
are provided to
persons who are in hospitals or in prison for 13 weeks or more and do not have
sufficient income to meet even the
minimum liability. The Bill extends the
exemptions regime to include a permanent exemption for victims of sex offences
when the offender
has been convicted or proved to have committed the offence
before the Youth Court. The Bill also exempts young people who are under
16
years of age[1] and do
not have sufficient income to meet the minimum liability.
- We
consider that the Bill appears to be consistent with the rights and freedoms
contained in the Bill of Rights Act. However, the
Bill does raise one issue
relating to the observance of the principles of natural justice that we wish to
draw to your attention.
ISSUES OF CONSISTENCY WITH THE BILL OF
RIGHTS ACT
Section 27(1) Observance of the principles of natural justice
- Clause
17 of the Bill inserts a new Part 5A into the CSA. Part 5A provides that certain
persons who would otherwise be liable to provide
financial support for their
children, may be exempted in certain circumstances. Part 5A sets out what the
criteria for being exempt
under the CSA are and the process for obtaining an
exemption.
- The
new section 89L of the CSA provides that a person who may qualify for an
exemption must apply in writing to the Commissioner for
a determination as to
whether he or she is exempt. The applicant must specify the reasons for his or
her exemption. The Commissioner
must notify the custodial parent of he fact that
an application for exemption has been made and the custodial parent may request
a copy of the application and make submissions on whether the exemption should
be granted (new section 89R). The Commissioner may
reach a determination based
on the information provided by the liable person and where the parties wish to
be heard, the Commissioner
must afford them that opportunity (89S(2)). The
Commissioner can conduct the hearing as he or she thinks fit and is not bound by
the rules of evidence (new section 89S(5)).
- We
note that parties to the hearing may be represented by another person if the
Commissioner approves that person (new sections 89T(1)
and 89T(2)). A party to
the proceedings may be assisted in the presentation of his or her case by their
representative if the Commissioner
agrees (new section 89T(4) but the
representative is not entitled to be heard (new section 89T(5).
- We
have paid particular regard to new section 89T(6). This new section provides
that the Commissioner must not approve as a representative
under new sections
89T(1) or (2), or approve as an assistant under new section 89T(4) any person
who is, or has been, enrolled as
a barrister and solicitor, or who, in the
opinion of the Commissioner, is or has been regularly involved in advocacy work
before
other tribunals.
- We
have considered whether new section 89T(6) raises issues of consistency with the
right under section 27(1) of the Bill of Rights
Act for every person whose
rights and interests are affected by the determination of a public authority.
The Court of Appeal in Drew v Attorney General [2001] NZCA 207; [2002] 1 NZLR 58 has held
that in certain contexts, the right to legal representation forms part of the
principles of natural
justice.[2] The right to
legal representation forms part of the principles of natural justice in
circumstances where such representation is considered
necessary to ensure that
the party has a fair
hearing.[3] A number of
factors are relevant in determining whether a person requires legal
representation in order to ensure they receive a
fair hearing. These
include:[4]
- The severity of
the penalties or consequences faced by the party;
- The nature of
the hearing (i.e. is the decision-maker exercising judicial or administrative
functions?);
- The complexity
of the issues raised in the hearing;
- The ability of
the person to present his or her own case;
- Whether the
hearing is likely to raise any points of law;
- The need for
fairness between the parties; and
- Whether there
are likely to be procedural difficulties in conducting the hearing without legal
representatives.
- The
Court of Appeal noted that the principles of natural justice would not require
legal representation in every case. The Court also
observed that it is more
accepted for legal representation to be restricted at the lower level as any
defects or injustices could
be dealt with by process of
appeal.[5]
- We
note that in the context of this Bill that the proceedings are not intended to
be complex – they are intended simply to enable
the parties to put their
case. The hearing is also of an administrative nature and to this extent is
quite different from the circumstances
of Drew (which concerned
disciplinary proceedings in the penal system). Further, the Commissioner has a
broad array of powers to ensure that
any hearing is fair to all parties. For
example, new section 89T(7) provides that if the Commissioner does approve a
representative
for one party, then he or she can attach any conditions to the
approval to ensure that the other party is not adversely affected.
The
Commissioner is also unable to approve a proposed representative unless he or
she considers that the representative has the required
knowledge of the case
(new section 89T(3)). Finally, we note that decisions of the Commissioner are
able to be appealed to the Family
Court (new section 103A) and that parties are
able to be legally represented at these proceedings.
- We
have therefore come to the conclusion that new section 89T(6) is consistent with
the principles of natural justice. We consider
that even if the prohibition on
legal representation in these proceedings was prima facie inconsistent
with section 27(1), such a limitation is reasonable and justifiable in terms of
section 5 of the Bill of Rights Act.
- The
administrative review process for child support was introduced in 1994 as a
means of overcoming the perceived barriers of access
to the Family Court for
parents seeking departure orders. Among those barriers were the complexity of
the process, the high costs
involved and the intimidatory nature of the court
process. IRD considers that the re-introduction of legal representation or
"professional
advocacy" into the process would move the scheme away from that
original concept and the barriers would re-emerge. The process can
therefore be
seen as serving a significant and important objective.
- We
also consider that the measure is both rational and proportionate for many of
the reasons set out in paragraphs 11 and 13 above.
We note that the scope of the
prohibition in section 89T extends beyond barristers and solicitors to include
professional advocates.
However, we have taken into account the concerns of IRD
and accept that any arbitrary distinction between professional advocates
and
barristers and solicitors may undermine the effectiveness of the
policy.
Conclusion
- We
have considered whether the Child Support Amendment Bill (No 4) is consistent
with the Bill of Rights Act, and particularly whether
the restriction on the
ability of parties to obtain legal representation or the services of a
professional advocate are consistent
with the principles of natural justice.
- We
have come to the conclusion that the Bill does appear to be consistent with the
Bill of Rights Act.
- In
accordance with previous practice, we attach a copy of this opinion for referral
to the Minister of Justice. A copy is also attached
for referral to the Minister
of Revenue if you
agree.
Jeff Orr Chief Legal Counsel Office of Legal Counsel
|
Boris van Beusekom Senior Legal Adviser Bill of Rights Team
|
CC Minister of Justice Minister of Revenue
|
|
![2005_800.jpg](2005_800.jpg)
Footnotes
1.
2
3 Ibid at para 73
4 Ibid at paras 64 and 66
5 Ibid, at para 72
![2005_800.jpg](2005_800.jpg)
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Child
Support Amendment Bill (No 4) 2005. It should not be used or acted upon for any
other purpose. The advice
does no more than assess whether the Bill complies
with the minimum guarantees contained in the New Zealand Bill of Rights Act. The
release of this advice should not be taken to indicate that the Attorney-General
agrees with all aspects of it, nor does its release
constitute a general waiver
of legal professional privilege in respect of this or any other matter. Whilst
care has been taken to
ensure that this document is an accurate reproduction of
the advice provided to the Attorney-General, neither the Ministry of Justice
nor
the Crown Law Office accepts any liability for any errors or omissions.
![2005_800.jpg](2005_800.jpg)
[1] It should be
noted that age only becomes a prohibited ground of discrimination from the age
of 16 years
[2]
Drew v Attorney-General, at para
69
[3] Ibid at para
73
[4] Ibid at paras
64 and 66
[5] Ibid,
at para 72
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