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Regulatory Responsibility Bill (Consistent) (Sections 19, 27(2)) [2006] NZBORARp 39 (21 August 2006)
Last Updated: 12 January 2019
Regulatory Responsibility Bill
21 August 2006 Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: REGULATORY
RESPONSIBILITY BILL
- We
have considered the Regulatory Responsibility Bill (‘the Bill’) for
consistency with the New Zealand Bill of Rights
Act 1990 (‘the Bill of
Rights Act’). The Bill, a Member’s Bill in the name of Rodney Hide
MP, was introduced into
the House of Representatives on 3
August
2006 and is currently awaiting its first reading. We
understand that the next Members’ day is
scheduled for Wednesday, 23 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 inconsistencies with sections 19 (freedom from
discrimination) and 27(2)
(right to judicial review) of the Bill of Rights
Act.
PURPOSE OF THE BILL
- The
Bill sets out principles for responsible regulation by which the Government must
be guided in the pursuit of its policy objectives.
The Bill also imposes
reporting requirements on the Crown with respect to those principles.
CONSISTENCY WITH THE BILL OF RIGHTS ACT
Section 19: Freedom from Discrimination
- Section
19(1) of the Bill of Rights Act affirms the right of everyone to be free from
discrimination on the grounds set out in the
Human Rights Act 1993 including
sex, race and religious belief. Section 19(2) clarifies that measures taken in
good faith for the
purpose of assisting or advancing persons or groups
disadvantaged because of discrimination do not themselves constitute
discrimination.
- Clause
6(2)(f)(vi) of the Bill requires that legislation does not confer rights or
benefits on particular categories of persons on
the basis of gender, race,
creed, religion, time, place, or otherwise. This clause does not appear to limit
the ability of Government
to undertake temporary measures for the purpose of
assisting or advancing disadvantaged persons or groups, although the Government
might be required to justify such measures under the reporting procedures set
out in the Bill. Clause 6(5) of the Bill provides for
temporary departures from
the principles in specified Acts or Regulations. Accordingly, this provision
appears to be consistent with
section 19 of the Bill of Rights
Act.
Section 27(2): Right to Judicial Review
- Section
27(2) of the Bill of Rights Act affirms that every person whose rights,
obligations, or interests protected or recognised
by law have been affected by a
determination of any tribunal or other public authority has the right to apply,
in accordance with
law, for judicial review of that determination. We have
considered whether clause 11 of the Bill is consistent with the right to
judicial review affirmed in section 27(2) of the Bill of Rights Act.
- Clause
11 of the Bill states that:
An Act or regulation, a statement, decision or any other action
of the Government, a Minister, an agency, an official, or any other
person under
this Act, and the principles of responsible regulatory management and their
application or non-application whether in
whole or in part, and whether in
general or in any particular case, must not be questioned, reviewed, or
restrained by or on an application
for judicial review or other process or
proceeding in any court.
- Clause
11 would prevent any judicial review of the application of the principles in
developing primary and secondary legislation,
as well as any decision made in
respect of the reporting functions under the Bill. However, clause 11 would not
prevent individuals
affected by a decision made under a particular Act or
Regulation from bringing judicial review proceedings on established grounds
including that the decision is outside the authority of the Act or regulation
(ultra vires).
- The
Court of Appeal has held that section 27 of the Bill of Rights Act is only
engaged when the "determination" in question is adjudicative
in nature. Section
27 does not apply to a decision which might have an indirect impact on the
rights of an individual.[1] Matters of
high government policy, which do not involve an assessment of rights in
individual cases, are therefore not a determination
for the purposes of section
27.[2] Decisions made under the Bill, or
in the application of the principles, would not involve determinations in
individual cases. Accordingly,
we have concluded that clause 11 does not limit
the right to judicial review as affirmed in section 27(2) of the Bill of Rights
Act.
CONCLUSION
- Based
on the analysis set out above, we have concluded that the Regulatory
Responsibility Bill appears to be consistent with rights
and freedoms affirmed
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
- Chisholm
v Auckland City Council [2005] NZAR 661, 668
- Lumber
Specialties Ltd v Hodgson [2000] 2 NZLR 347, 375
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 Regulatory Responsibility
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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