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Weathertight Homes Resolution Services Amendment Bill (Consistent) (Sections 21, 27(1)) [2006] NZBORARp 38 (9 August 2006)
Last Updated: 11 January 2019
Weathertight Homes Resolution Services Amendment Bill
9 August 2006 Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: WEATHERTIGHT HOMES
RESOLUTION SERVICES AMENDMENT BILL
- We
have considered the Weathertight Homes Resolution Services Amendment Bill ('the
Bill') for consistency 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
Business Committee
on Monday, 14 August 2006.
- We
have concluded that the Bill appears to be consistent with rights and freedoms
affirmed in the Bill of Rights Act. In reaching
this conclusion, we have
considered the Bill for possible limitations on section 21 (unreasonable search
and seizure) and section
27(1) (right to natural justice) of the Bill of Rights
Act. Our analysis under those sections is discussed below.
PURPOSE OF THE BILL
- The
Bill amends the Weathertight Homes Resolution Services Act 2002 ('the Act'),
which provides homeowners with an alternative to
the Courts for the resolution
of leaky building claims. The Bill contains several changes to the existing
procedure intended to improve
the speed and efficiency of the resolution
service.
CONSISTENCY OF THE BILL WITH THE BILL OF RIGHTS ACT
Section 21: Unreasonable Search and
Seizure
- Section
21 of the Bill of Rights Act affirms the right of everyone to be secure against
unreasonable search or seizure, whether of
the person, property, or
correspondence or otherwise.
- Clause
18 of the Bill inserts a new section 36 into the Act which, among other things,
empowers the Tribunal to compel parties to
provide documents that it reasonably
requires. A failure to comply is an offence under new section 55E and could lead
to a fine of
up to
$2000. A requirement to produce documents is
likely to be considered a search for the purposes of section 21, especially
where failure
to provide the documents results in possible sanction.[1]
- The
Canadian courts have taken the view that a proper balance between the interests
of the individual and the state can be struck
if the requirement to produce
documents is subject to appropriate terms and conditions, including those
designed to protect the interests
of the person compelled to provide the
documents.[2]
- We
have concluded that this provision appears to be consistent with the right to be
secure against unreasonable search and seizure.
In reaching this conclusion we
note that the ability
to require documents is consistent with the
adjudication function of the Tribunal (i.e. the Tribunal may exercise this power
in relation
to an adjudication or the parties to it) and that the power must be
exercised reasonably. Also, the power to demand the production
of documents is
less of an intrusion into the expectation of privacy than a power of entry.[3]
Section 27(1): Consistency with the Right to Natural Justice
- Section
27(1) of the Bill of Rights Act affirms that every person whose interests are
affected by a decision by a public authority
has the right to the observance of
the principles of natural justice.
The Right to Natural Justice and Time Limits
- Clause
9 of the Bill inserts a new section 10(5) into the Act which limits the time
available for individuals to respond to assessor's
report to 20 days. Similarly,
clause 10 inserts a new section 12A into the Act which imposes a 20 day limit on
the time to apply
for a reconsideration of a determination. Although time limits
can limit the right to natural justice, in this case, the time limits
appear to
be reasonable and do not limit the right to natural justice affirmed in section
27 of the Bill of Rights Act.
The Right to Natural Justice and Cross-examination
- Clause
18 of the Bill inserts a new section 38C(2) into the Act which requires the
Tribunal to comply with the principles of natural
justice. This provision does
not appear to alter the obligation of the Tribunal to comply with the principles
of natural justice,
which exists regardless of any statutory requirement. New
section 38C(3) states that subsection (2) does not require the Tribunal
to
permit cross-examination but it may do so in its "absolute discretion". The
right to natural justice generally requires the right
to cross-examine or test
the evidence of the other side, especially in circumstances where credibility is
an issue, although it will
not be necessary in all cases.
- Applying
section 6 of the Bill of Rights Act, which requires the Courts to prefer
interpretations that are consistent with the Bill
of Rights Act, the discretion
conferred by section 38C(3) can be interpreted as subject to the obligation to
observe the principles
of natural justice. Although that discretion is described
as “absolute”, this does not remove the presumption that the
principles of natural justice apply to that discretion. Section 38C(3) therefore
clarifies that the right to natural justice will
not necessarily require the
Tribunal to allow cross-examination. Accordingly, it appears to be consistent
with section 27(1) of the
Bill of Rights Act.
The Right to Natural Justice and Legal Representation
- Clause
18 also inserts a new section 39A(1)(b) into the Act which makes one of the aims
of the Tribunal to minimise the involvement
of lawyers in low value claims
(defined as claims under $50,000). The principles of natural justice might
require that a person be
legally represented where representation is necessary
in the interest of fairness.[4] A question
of
fairness might arise where there are points of law to decide, the
capacity of a particular party to represent themselves is in doubt,
or
procedural difficulties are likely to be encountered. New section 39A(1) is
subject to section 50 of the Act, which provides for
parties to be represented
at hearings, and new section 38C(2) in the Bill, which requires the Tribunal to
comply with the principles
of natural justice. Accordingly, it appears to be
consistent with section 27(1) of the Bill of Rights Act.
CONCLUSION
- Based
on the analysis set out above, we have concluded that the Bill appears to be
consistent with the rights and freedoms contained
in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
|
Margaret Dugdale
Policy Manager, Bill of Rights/Human Rights Public Law Group
|
Footnotes
- NZ
Stock Exchange v CIR [1991] 3 WLR 221; [1991] 4 All ER 443 (PC); see also
McKinlay
Transport Ltd v R (1990) 68 DLR (4th) 568 (SCC); Thomson
Newspapers v Canada [1990] 1
SCR 425.
- United
Kingdom v Hrynyk 135 DLR (4th) 693, 702.
- Trans
Rail v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780, 791-792
- Drew
v Attorney-General [2001] 1 NZLR 428
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 Weathertight Homes Resolution
Services Amendment Bill. 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.
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